Town of Gurley v. M & N Materials, Inc. (Appeal from Madison Circuit Court: CV-05-731). Application Overruled; Opinion of December 21, 2012, modified [by substitution of pages 26 through 36 for pages 26 through 35 of the original opinion to add footnote 6 and to renumber the remaining footnotes accordingly].
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2013
____________________
1110439
____________________
Town of Gurley
v.
M & N Materials, Inc.
____________________
1110507
____________________
M & N Materials, Inc.
v.
Stan Simpson, individually and as mayor of the Town of
Gurley, and Town of Gurley
Appeals from Madison Circuit Court
(CV-05-731)
On Applications for Rehearing
PARKER, Justice.
1110439 -- APPLICATION OVERRULED; OPINION OF DECEMBER 21,
2012, MODIFIED [BY SUBSTITUTION OF PAGES 26 THROUGH 36 FOR
PAGES 26 THROUGH 35 OF THE ORIGINAL OPINION TO ADD FOOTNOTE 6
AND TO RENUMBER THE REMAINING FOOTNOTES ACCORDINGLY].
Smith, Special Justice,* concurs.
Moore, C.J., and Stuart, Parker, and Shaw, JJ., concur
specially.
Bolin, Wise, and Bryan, JJ., concur in the result.
Murdock, J., concurs in the result, withdraws his special
writing issued on original submission on December 21, 2012,
and substitutes a new writing.
Main, J., recuses himself.
1110507 -- APPLICATION OVERRULED; OPINION OF DECEMBER 21,
2012, MODIFIED [BY SUBSTITUTION OF PAGES 26 THROUGH 36 FOR
PAGES 26 THROUGH 35 OF THE ORIGINAL OPINION TO ADD FOOTNOTE 6
AND TO RENUMBER THE REMAINING FOOTNOTES ACCORDINGLY].
Smith, Special Justice,* concurs.
_______________
*Retired Associate Justice Patti Smith was appointed on
August 23, 2013, to serve as a Special Justice in regard to
these appeals.
2
1110439, 1110507
Moore, C.J., and Stuart, Parker, and Shaw, JJ., concur
specially.
Bolin, Wise, and Bryan, JJ., dissent.
Murdock, J., dissents, withdraws his special writing
issued on original submission on December 21, 2012, and
substitutes a new writing.
Main, J., recuses himself.
3
1110439, 1110507
University of North Alabama, 826 So. 2d 118 (Ala. 2002), § 23
was not applicable to the Town's actions.
Section 23, entitled "Eminent domain," provides:
"That the exercise of the right of eminent
domain shall never be abridged nor so construed as
to prevent the legislature from taking the property
and franchises of incorporated companies, and
subjecting them to public use in the same manner in
which the property and franchises of individuals are
taken and subjected; but private property shall not
be taken for, or applied to public use, unless just
compensation be first made therefor; nor shall
private property be taken for private use, or for
the use of corporations, other than municipal,
without the consent of the owner; provided, however,
the legislature may by law secure to persons or
corporations the right of way over the lands of
other persons or corporations, and by general laws
provide for and regulate the exercise by persons and
corporations of the rights herein reserved; but just
compensation shall, in all cases, be first made to
the owner; and, provided, that the right of eminent
domain shall not be so construed as to allow
taxation or forced subscription for the benefit of
railroads or any other kind of corporations, other
than municipal, or for the benefit of any individual
or association."6
6
We note that the plain language of § 23 prevents the
State, not municipalities, from taking property without just
compensation.
See Art. I, § 36, Ala. Const. 1901 ("[W]e
declare that everything in this Declaration of Rights is
excepted out of the general powers of government, and shall
forever remain inviolate.")(emphasis added). In this case,
the legislature enacted Act No. 2004-19, which annexed the atissue property. Therefore, § 23 is applicable because of the
legislature's involvement with the Town's annexation of the
at-issue property.
[substituted p. 26]
1110439, 1110507
Further, this Court set forth the following concerning the
power of eminent domain and its limitations in Gober v.
Stubbs, 682 So. 2d 430, 433-34 (Ala. 1996):
"The power of eminent domain does not originate
in Article I, § 23. Instead, it is a power inherent
in every sovereign state. Section 23 merely places
certain limits on the exercise of the power of
eminent domain. This Court stated in Steele v.
County Commissioners, 83 Ala. 304, 305, 3 So. 761,
762 (1887):
"'The
right
of
eminent
domain
antedates constitutions, and is an incident
of sovereignty, inherent in, and belonging
to
every
sovereign
State.
The
only
qualification of the [inherent] right is,
that the use for which private property may
be
taken
shall
be
public....
The
constitution [of our State] did not assume
to confer the power of eminent domain, but,
recognizing
its
existence,
[further]
limited its exercise by requiring that just
compensation shall be made.'
"In order for an exercise of eminent domain to be
valid under § 23, two requirements must be met. See
Johnston v. Alabama Public Service Commission, 287
Ala. 417, 419, 252 So. 2d 75, 76 (1971). First, the
property must be taken for a public use and, with
one exception inapplicable here, it cannot be taken
for the private use of individuals or corporations.
This first restriction is no more than a restatement
of a requirement inherent in a sovereign's very
right to exercise eminent domain. See Steele, 83
Ala. at 305, 3 So. at 762. Second, 'just
compensation [must be paid] for any private property
taken.' Johnston, 287 Ala. at 419, 252 So. 2d at
76."
[substituted p. 27]
1110439, 1110507
(Footnotes omitted.)
In Willis, a property owner owned property across the
street from a parking lot owned by the University of North
Alabama ("UNA").
UNA built a multilevel parking deck on its
parking lot; it was assumed that the construction of the
parking
deck
property.
reduced
the
value
of
the
property
owner's
As a result, the property owner "filed an inverse-
condemnation action against UNA, based on the allegation that
UNA
'took'
his
property
violation of § 23 ...."
without
'just
compensation,'
826 So. 2d at 119.
in
This Court held
that even though the property owner's property was injured,
"since no portion of Willis's property was 'taken,' or applied
to public use by UNA, UNA was not required to compensate
Willis under § 23."
826 So. 2d at 121.
Also significant to
the holding in Willis was the overruling of certain holdings
in Foreman v. State, 676 So. 2d 303 (Ala. 1995), as follows:
"Foreman v. State, 676 So. 2d 303 (Ala. 1995),
involved an inverse-condemnation action in which
compensation was sought under § 23 of the
Constitution of Alabama of 1901. In Foreman, this
Court held that in '"inverse condemnation actions,
a governmental authority need only occupy or injure
the property in question."' 676 So. 2d at 305
(quoting Jefferson County v. Southern Natural Gas
Co., 621 So. 2d 1282, 1287 (Ala. 1993)) (emphasis
added in Foreman). However, in Jefferson County, the
[substituted p. 28]
1110439, 1110507
Court
was
applying
§
235
of
the
Alabama
Constitution, not § 23. As we have already noted, §
235 does not apply to the State. Finnell v. Pitts,
222 Ala. 290, 132 So. 2 (1930). To the extent that
Foreman (and Barber v. State, 703 So. 2d 314 (Ala.
1997), which relied on Foreman), held that under §
23 '"a governmental authority need only occupy or
injure the property in question,"' those holdings
are incorrect and are hereby overruled."
Therefore, it is clear, under the plain language of § 23
and under Willis, that the trial court properly held that § 23
does not apply in this case.
not
an
actual
taking
in
It is undisputed that there was
this
case
and
that
M
&
N
has
complained only of administrative and/or regulatory actions
taken by the Town.
Willis makes clear that § 23 applies when
a physical taking of the property in question has occurred.7
7
The
dissent
discusses
Alabama
Department
of
Transportation v. Land Energy, Ltd., 886 So. 2d 787 (Ala.
2004), which was based upon the "law of the case" doctrine,
not upon an interpretation by this Court of § 23 allowing for
the recovery of a regulatory "taking." See, e.g., id. at 796
("Under the governing 'law of the case,' ...), 802 ("Given the
particular procedural and evidentiary posture of this case,
and given the 'law of the case' established by the jury
instructions, we conclude that the jury was entitled to find
that LE possessed an identifiable property-use interest before
the condemnation. In that regard, one feature of the law of
the case, binding on the jury, was the instruction that if it
found to its reasonable satisfaction that ADOT [the Alabama
Department of Transportation] 'by acquiring the surface above
the mineral estate of [LE] improperly foreclosed the
possibility that [LE] could recover its minerals,' it would be
the duty of the jury to determine damages"), and 803
("Although there was testimony offered by ADOT contrary to
[substituted p. 29]
1110439, 1110507
In the present case, M & N does not allege that there was a
physical taking of the property in question.
We affirm the
trial court's judgment granting the Town's motion for a JML as
to M & N's § 23 claim.8
Next, M & N argues that the trial
court "erred in
granting judgment as a matter of law on M & N's negligence
claims." Although M & N cites general authority setting forth
the elements of a negligence claim, M & N cites no authority
establishing that the Town or Simpson owed M & N a duty.
Instead, without citing any authority, M & N generally alleges
that the Town and its employees
"had a duty to ensure that its mayor was qualified
to hold office ... and to properly process and issue
a business license to M & N and to Vulcan, to
prevent the adoption of arbitrary and capricious
moratoria targeting the property, to properly assign
zoning to the property (including overseeing a
some of the testimony recited above, under the applicable
standard of review we must construe the record in favor of LE
and look to see only if there is substantial evidence in the
record supporting the jury's finding that a taking, as defined
by the jury instructions, occurred.") (some emphasis added).
8
We note that M & N also cites Blankenship v. City of
Decatur, 269 Ala. 670, 115 So. 2d 459 (1959), and Opinion of
the Justices No. 119, 254 Ala. 343, 48 So. 2d 757 (1950), in
support of its argument regarding § 23. However, those cases
are distinguishable in that both of those cases involved a
physical taking of property, unlike the present case.
[substituted p. 30]
1110439, 1110507
proper land use study), and to properly apply its
existing zoning ordinances."
Then, without citing any facts, M & N generally alleges that
the Town "breached those duties, which proximately caused
damages to M & N."
M & N also generally argues, without
citing any facts, that it "presented substantial evidence from
which the jury could have determined that [the Town] acted
negligently...."
As set forth in our standard-of-review section above, a
motion for a JML is properly denied when the nonmoving party
has produced substantial evidence to support each element of
the party's claim.
See Cheshire, supra.
M & N, the nonmoving
party below and the cross-appellant here, has the burden of
demonstrating that it produced substantial evidence to support
every element of its negligence claims.
M & N has failed to
cite any authority to support its assertion that the Town owed
M & N a duty and has failed to indicate which facts in the
record constitute substantial evidence supporting the elements
of its negligence claims.
This Court held as follows in
University of South Alabama v. Progressive Insurance Co., 904
So. 2d 1242, 1247–48 (Ala. 2004):
[substituted p. 31]
1110439, 1110507
"Rule 28(a)(10), Ala. R. App. P., requires that
arguments in an appellant's (or cross-appellant's)
brief contain 'citations to the cases, statutes,
other authorities, and parts of the record relied
on.' The effect of a failure to comply with Rule
28(a)(10) is well established:
"'It is settled that a failure to comply
with the requirements of Rule 28(a)([10])
requiring
citation
of
authority
for
arguments provides the Court with a basis
for disregarding those arguments:
"'"When an appellant fails to
cite
any
authority
for
an
argument on a particular issue,
this
Court
may
affirm
the
judgment as to that issue, for it
is neither this Court's duty nor
its
function
to
perform
an
appellant's legal research. Rule
28(a)([10]);
Spradlin
v.
Birmingham Airport Authority, 613
So. 2d 347 (Ala. 1993)."
"'City of Birmingham v. Business Realty
Inv. Co., 722 So. 2d 747, 752 (Ala. 1998).
See also McLemore v. Fleming, 604 So. 2d
353 (Ala. 1992); Stover v. Alabama Farm
Bureau Ins. Co., 467 So. 2d 251 (Ala.
1985); and Ex parte Riley, 464 So. 2d 92
(Ala. 1985).'
"Ex parte Showers, 812 So. 2d 277, 281 (Ala. 2001).
'[W]e cannot create legal arguments for a party
based
on
undelineated
general
propositions
unsupported by authority or argument.' Spradlin v.
Spradlin, 601 So. 2d 76, 79 (Ala. 1992)."
[substituted p. 32]
1110439, 1110507
Based on its failure to cite any legal authority or facts
demonstrating that the trial court's JML on M & N's negligence
claims was in error, we need not consider M & N's argument.
Next, M & N argues that the "trial court erred
in
dismissing M & N's claims for negligent hiring, retention, and
supervision."
M & N generally argues that "the trial court
erroneously granted [the Town's] motion to dismiss M & N's
negligent hiring, retention, and supervision claims," but M &
N does not provide this Court with any authority demonstrating
that the trial court's judgment was in error.
Instead, M & N
argues that "a negligent hiring and supervision claim may lie
against a municipality" and that the Town "incorrectly argued
that it could have no vicarious liability for the negligence
of its employees because of discretionary function immunity."
However, M & N does not provide this Court with any argument
or authority demonstrating that the trial court's judgment was
in error. Therefore, we need not consider this argument.
See
Rule 28(a)(10), Ala. R. App. P., and Progressive Insurance,
supra.
Next, M & N argues that the "trial
court erred in
excluding evidence of Simpson's prior convictions."
[substituted p. 33]
In City
1110439, 1110507
of Birmingham v. Moore, 631 So. 2d 972, 974 (Ala. 1994), this
Court
held
that
"[t]he
decision
to
admit
or
to
exclude
evidence is within the discretion of the trial judge, and we
will
not
reverse
discretion."
such
a
decision
absent
an
abuse
of
This Court also held in Moore that
"the mere showing of error is not sufficient to
warrant a reversal; it must appear that the
appellant was prejudiced by that error. Rule 45,
[Ala.] R. App. P. Industrial Risk Insurers v.
Garlock Equip. Co., 576 So. 2d 652, 658 (Ala. 1991);
Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d
165, 167 (Ala. 1991)."
631 So. 2d at 973-74.
In the present case, M & N has argued
only that the trial court erred by excluding Simpson's prior
convictions, not that the trial court exceeded its discretion
in doing so.
by
the
M & N generally alleges that it was prejudiced
exclusion
of
the
evidence
of
Simpson's
prior
convictions, but it offers no explanation as to how it was
prejudiced.
M & N has failed to demonstrate that the trial
court exceeded its discretion in excluding the evidence and,
thus, has failed to demonstrate reversible error on the part
of the trial court.
Lastly, M & N argues that the "trial court erred in
granting judgment as a matter of law on M & N's wantonness
[substituted p. 34]
1110439, 1110507
claims against Simpson" and that the "trial court erred in
charging the jury on the affirmative defense of justification
on M & N's intentional interference claim."
However, M & N
fails to cite authority supporting these arguments.
M & N
does make general allegations concerning the facts to support
its argument that the trial court's JML for Simpson on its
wantonness claim was in error; however, it does not direct
this
Court's
attention
to
specific
facts
supporting
its
argument.
Therefore, we need not consider these arguments.
See
28(a)(10),
Rule
Ala.
R.
App.
P.,
and
Progressive
Insurance, supra.9
Conclusion
Based on the foregoing, in case no. 1110439, we hold that
§ 235 does not support M & N's inverse-condemnation claim that
is based upon administrative and/or regulatory actions taken
by the Town; thus, we reverse the trial court's judgment in
favor of M & N on its inverse-condemnation claim and render a
9
We note that the Town and Simpson argued that M & N was
not the real party in interest under Rule 17, Ala. R. Civ. P.
However, that issue is inconsequential because, assuming that
M & N is the real party in interest for either some or all the
claims, the Town and Simpson have prevailed.
[substituted p. 35]
1110439, 1110507
judgment in favor of the Town.
In case no. 1110507, we affirm
the trial court's judgment.
1110439 -- REVERSED AND JUDGMENT RENDERED.
Malone, C.J., and Woodall, Stuart, Bolin, Shaw, and Wise,
JJ., concur.
Murdock, J., concurs in the result.
1110507 -- AFFIRMED.
Malone, C.J., and Woodall, Stuart, Bolin, Shaw, and Wise,
JJ., concur.
Murdock, J., dissents.
[substituted p. 36]
1110439, 1110507
MURDOCK, Justice (concurring in the result in case no. 1110439
and dissenting in case no. 1110507, as substituted on denial
of applications for rehearing on September 27, 2013).
I concur in the result in case no. 1110439; I dissent in
case no. 1110507.
There
are
I write in reference to the latter case.
two
issues
in
case
no.
1110507:
(1)
the
substantive meaning of the "takings clause" in § 23 of our
State
Constitution,
specifically
whether
it
prohibits
"regulatory takings" without just compensation, and, (2) if it
does, whether the takings clause in § 23 limits the power of
municipalities.
I will address both issues in the order
stated.
I. The Substantive Meaning of § 23
The claim of inverse condemnation asserted by M & N
Materials, Inc., under § 23 of the Alabama Constitution of
1901 was based not on a physical taking of the property at
issue, but upon a so-called "regulatory taking" by the Town of
Gurley ("the Town").
In case no. 1110507, the main opinion
rejects this claim on the ground that
"it is clear, under the plain language of § 23
[Alabama Const. 1901] and under [this Court's
holding in] Willis [v. University of North Alabama,
826 So. 2d 118 (Ala. 2002)], that the trial court
properly held that § 23 does not apply in this case.
... Willis makes clear that § 23 applies when a
15
1110439, 1110507
physical taking of the property in question has
occurred."
___ So. 3d at ___.
As discussed below, although Willis may
hold that § 23 does apply when there has been a physical
taking, it should not be read as holding that this is the only
circumstance in which § 23 applies. In any event, the present
case
is
distinguishable
from
Willis.
Further,
as
also
discussed below, I do not agree that the plain language of
§ 23 forecloses compensation for a so-called "regulatory
taking" of property by the government.
A. Distinguishing Willis
I agree that the Court in Willis did rely upon the lack
of a physical taking as a basis for ruling against the
landowner in that particular case.
826 So. 2d at 121.
That
was the only rationale offered to the Court by the government
in that case, however.
Id.
Moreover, the Court's reliance
upon this rationale to decide the particular case before it
must be considered in light of the juxtaposed rationales
offered to the Court by the parties in that case.
The
alternative position offered to the Court by the landowner was
that governmental action that resulted in a mere "injury" to
property, as opposed to an outright physical taking of it, was
16
1110439, 1110507
sufficient to sustain a claim of inverse condemnation under §
23.
Id.
The Court's opinion, therefore, understandably
rejects the landowner's argument and embraces the position
that mere "injury" to property does not violate the right
expressed in § 23. Importantly for our purposes here, no issue
was presented in Willis as to whether a "regulatory taking"
would be prohibited by § 23.
Willis involved the construction of a parking deck by the
government on property adjacent to the plaintiff's.
The
plaintiff complained that the presence of this structure
resulted in a reduction in the market value of the plaintiff's
property and, thus, that his property had been "injured" for
purposes of § 23.
826 So. 2d at 120.
Willis did not involve,
as does the present case, a regulatory action by which the
government directly and formally imposed restrictions upon the
use of the plaintiff's property.
Nor did the plaintiff argue
that the government's actions had deprived his property of all
reasonable uses.10
Accordingly, I cannot find Willis to be
10
I do not address the issue whether a regulatory taking
necessarily occurs only when property is deprived of all
reasonable uses, only the fact that that is what occurred in
this case. See discussion, infra, of Alabama Department of
Transportation v. Land Energy, Ltd., 886 So. 2d 787 (Ala.
17
1110439, 1110507
dispositive of the issue of the potential application of § 23
in the present case.11
2004), noting with apparent approval United States Supreme
Court jurisprudence recognizing the possibility of a
regulatory "partial taking."
11
In his separate writing, Justice Parker expresses the
view that this writing "does not address the significant
holding in Willis overruling in part Foreman v. State, 676 So.
2d 303 (Ala. 1995)." ___ So. 3d at ___ (Parker, J., concurring
specially).
I disagree.
I believe I have adequately
explained the limited nature of the Willis holding.
Specifically, however, Justice Parker focuses on the
overruling in Willis of the holding in Foreman that "'a
governmental authority need only occupy or injure the property
in question.'" ___ So. 3d at ___ (quoting Foreman, 676 So. 2d
at 305 (emphasis by Justice Parker)). He suggests thereby
that Willis stands for the proposition that a mere "injury" is
not enough to constitute a "taking" under § 23.
I stand by the factual distinctions between the present
case and Willis, as described in the preceding text, as well
as by my explanation of the limited nature of the Willis
holding given the context of those facts and the competing
positions offered to the Court by the parties in that case.
The Willis Court said that a physical occupation of the
property was compensable; it did not say, as Justice Parker
suggests, that "anything other than physical invasion is not
compensable." ___ So. 3d at ___. In short, the issue of a
"regulatory taking" simply was not presented to or addressed
by the Court in Willis.
As I explain in the text immediately following this
footnote, what is going on in this case is more than a mere
"injury" to property of the nature rejected in Willis (the
construction of a parking deck next to the landowner's
property).
Instead, there is a regulatory taking that
deprives the property of all reasonable uses, including
particularly the "reasonable investment-backed expectations"
18
1110439, 1110507
B. Comparing the "Takings Clause" of § 23 of the Alabama
Constitution and the "Takings Clause" of the Fifth Amendment
to the United States Constitution
The applicable "takings clause" of § 23 reads as follows:
"[P]rivate property shall not be taken for, or applied to
public use, unless just compensation be first made therefor
...."
The "Takings Clause" of the Fifth Amendment to the
United States Constitution states that private property shall
not "be taken for public use, without just compensation."
see
no
material
difference
in
the
wording
of
these
I
two
provisions.
As this Court has recognized:
"[W]hen the United States Supreme Court construes
the Federal Constitution and its application to a
given situation, it is controlling on us insofar as
that constitution is concerned. When we construe
similar features of the State Constitution as
applicable to the same situation the decision of the
United States court, though not controlling on us[,]
should be persuasive. A different conclusion would
produce
much
confusion
and
instability
in
legislative effectiveness."
Pickett v. Matthews, 238 Ala. 542, 547, 192 So. 261, 265-66
(1939).
This Court often looks to federal constitutional
of its owner. See Penn Central Transp. Co. v. City of New
York, 438 U.S. 104, 130-31 (1978).
19
1110439, 1110507
cases when considering the meaning of a particular word in a
constitutional context.
See, e.g., Cole v. Riley, 989 So. 2d
1001, 1009-10 (Ala. 2007) (See, J., concurring specially);
Jefferson Cnty. v. Southern Natural Gas Co., 621 So. 2d 1282,
1287 (Ala. 1993) (looking to United States Supreme Court cases
to draw a distinction between inverse condemnation and eminent
domain).
The United States Supreme Court has held that "government
regulation of private property may, in some instances, be so
onerous
that
its
effect
is
tantamount
to
a
direct
appropriation or ouster -- and that such 'regulatory takings'
may be compensable under the Fifth Amendment."
Lingle v.
Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).
As Justice
Holmes explained in his watershed decision in Pennsylvania
Coal Co. v Mahon, 260 U.S. 393, 415 (1922): "[W]hile property
may be regulated to a certain extent, if regulation goes too
far it will be recognized as a taking."
Furthermore, insofar as a taking for "public use" is
required, there is no dispute that the zoning of the land at
issue here in order to prevent its use as a quarry was done
for the purported benefit of the Town and the public at large.
20
1110439, 1110507
Takings jurisprudence in both the federal and the state courts
emphasizes the need to "bar Government from forcing some
people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole." Armstrong
v. United States, 364 U.S. 40, 49 (1960); City Council of
Montgomery v. Maddox, 89 Ala. 181, 188-89, 7 So. 433, 436
(1890).
"Whatever is beneficially employed for the community
is of public use and a distinction [between this and 'public
benefit'] cannot be tolerated."
Aldridge v. Tuscumbia, C. &
D.R. Co., 2 Stew. & P. 199 (Ala. 1832).
This is not the first case in which this Court has had
the
opportunity
to
discuss
federal
"regulatory
taking"
jurisprudence in the context of a claim under § 23 of the
Alabama Constitution. In Alabama Department of Transportation
v. Land Energy, Ltd., 886 So. 2d 787 (Ala. 2004), the Court
affirmed an inverse-condemnation award under § 23 of the
Alabama Constitution based on a "taking" of surface-mineable
coal.
of
In so doing, the Court relied upon the doctrine of law
the
case
(specifically,
in
the
relation
Alabama
to
a
failure
Department
of
of
the
State
Transportation
("ADOT")) to object at trial to a jury instruction that the
21
1110439, 1110507
plaintiff was entitled to recover for a "taking" if the jury
found
that
the
actions
of
the
State
had
prevented
plaintiff from mining the coal from its property.
the
Indeed,
ADOT committed itself in that case to a position that a
"taking" could occur for purposes of § 23 by a so-called
"regulatory taking." 886 So. 2d at 799. Accordingly, this
Court provided the following explanation of ADOT's position in
that
case,
instructive
helpful
to
the
present
discussion
of
federal
case
because
"regulatory
of
taking"
jurisprudence:
"ADOT ... state[s] that
"'there are two distinct kinds of taking:
physical takings and regulatory takings. A
physical
taking
requires
a
physical
invasion or occupation of the property or
that the owner be otherwise dispossessed of
the property. A regulatory taking occurs
where the owner retains the property, but
its use is now regulated to such a degree
that it is the legal equivalent of a
taking. See Lucas v. South Carolina Coastal
Council, 505 U.S. 1003 (1992).'
"ADOT further asserts that the 'takings
jurisprudence of the U.S. Supreme Court has
recognized two types of compensable regulatory
takings: Categorical and partial.' It contends that
a
categorical
taking
is
one
in
which
all
economically viable use, meaning all economic value,
has been absorbed by the regulatory imposition. By
process of elimination, it concludes that the
22
its
1110439, 1110507
alleged taking in this case must be analyzed as a
'partial' taking that is 'regulatory in nature'
because LE's claim, which relates only to 'a portion
of the mineral estate, i.e., the surface mineable
coal, prevents any conclusion that a categorical
taking of the 120-acre mineral estate occurred.'
Thus, in accordance with the legal position ADOT has
staked out, this Court must consider whether there
was substantial evidence from which the jury could
reasonably have concluded that either a full or a
partial taking occurred. Citing Penn Central
Transportation Co. v. City of New York, 438 U.S.
104, 130-31, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978),
ADOT argues that '[t]he point at which regulation
becomes a partial taking does not present a bright
line test, but rather an ad hoc balancing test
focused
on
(1)
distinct
investment
backed
expectations, (2) the nature of the government
action, and (3) the economic impact on the property
owner.'"
Land Energy, 886 So. 2d at 797.
The Court also noted that,
"'[w]ith respect to 'regulatory takings,' ADOT referred in its
trial brief to 'a growing body of federal law involving the
issue,' citing six decisions of the United States Supreme
Court, including Penn Central, supra; Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed. 2d
798 (1992); and Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465,
152 L.Ed. 2d 517 (2002)."
886 So. 2d at 798.
Further, citing
Lucas, ADOT took the position that "'[a] regulatory taking
occurs where the owner retains the property, but its use is
23
1110439, 1110507
now regulated to such a degree that it is the legal equivalent
of a taking.'"
Id.
The Court's opinion in Land Energy went on to explain as
follows:
"In Penn Central, supra, the United States
Supreme Court acknowledged that it had theretofore
been unable to develop any set formula for
determining when compensation for a regulatory
taking was due from the government, explaining that
the cases on point had engaged in 'essentially ad
hoc, factual inquiries.' Among the factors prior
caselaw
had
identified
as
having
particular
significance in the analysis was '[t]he economic
impact of the regulation on the claimant and,
particularly, the extent to which the regulation has
interfered
with
distinct
investment-backed
expectations.' 438 U.S. at 124, 98 S.Ct. 2646. In
Lucas, the Court acknowledged that its caselaw had
produced some 'inconsistent pronouncements.' 505
U.S. at 1016 n. 7, 112 S.Ct. 2886. The Court pointed
out that it had said on numerous occasions '[that]
the Fifth Amendment is violated when land-use
regulation ... "denies an owner economically viable
use of his land."' 505 U.S. at 1016, 112 S.Ct. 2886
(quoting Agins v. City of Tiburon, 447 U.S. 255, 100
S.Ct. 2138, 65 L.Ed.2d 106 (1980)) (emphasis added
in Lucas). ...
"In Tahoe-Sierra Preservation Council, supra,
the Court explained that '[t]he Penn Central
analysis involves "a complex of factors including
the regulation's economic effect on the landowner,
the extent to which the regulation interferes with
reasonable investment-backed expectations, and the
character of the government action."' 535 U.S. at
315 n. 10, 122 S.Ct. 1465 (quoting Palazzolo v.
Rhode Island, 533 U.S. 606, 616, 121 S.Ct. 2448, 150
L.Ed.2d 592 (2001)). The phrase actually used in
24
1110439, 1110507
Penn
Central
was
'distinct
investment-backed
expectations.' Penn Central cited Goldblatt v. Town
of Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 8
L.Ed.2d 130 (1962), as the source of this factor,
but no phrasing similar to it is used at the page
cited or anywhere else in the Goldblatt opinion. The
relevant statements that appear on the page cited
from Goldblatt are simply that '[t]here is no set
formula to determine where regulation ends and
taking begins'; that a 'comparison of values before
and
after
is
relevant,'
but
'by
no
means
conclusive'; and that '[h]ow far regulation may go
before it becomes a taking we need not now decide,
for there is no evidence in the present record which
even remotely suggests that prohibition of further
mining will reduce the value of the lot in question'
(footnote omitted).3
"_______________
"3Penn Central commented that '[i]t is, of
course, implicit in Goldblatt that a use restriction
on real property may constitute a "taking" ...
perhaps if it has an unduly harsh impact upon the
owner's use of the property.' 438 U.S. at 127, 98
S.Ct. 2646."
Land Energy, 886 So. 2d at 798.
The
Court
ended
its
analysis
of
the
issue
with
an
extensive review of the trial testimony relevant to the
landowner's
"reasonable
expectation
investment."
866 So. 2d at 799-803.
of
a
return
on
Based on this evidence,
it concluded that the landowner had been deprived of an
"identifiable property-use interest" within the context of the
25
1110439, 1110507
regulatory-taking jurisprudence applicable to that case.
866
So. 2d at 802-03.
Although we are not bound by the federal regulatory
jurisprudence relied upon by the Court in Land Energy, I am
persuaded that we should apply some form of it to § 23 claims,
given the virtually identical language of that section of our
State constitution and of the Fifth Amendment to the United
States Constitution.
In this case, there is ample evidence
from which the jury could have concluded that the property was
suited primarily for mining the stone beneath its surface and
not for the agricultural purpose for which it was zoned and
that, as a result, there has been an "unduly harsh impact upon
the owner's use of the property."
866 So. 2d at 798.
More
specifically, the owner in this case has been deprived of any
and all reasonable uses of its property and, concomitantly, of
a distinct and "reasonable investment-backed expectation."
I
therefore find the Town's actions to have been a regulatory
taking that is prohibited by § 23 in the absence of adequate
compensation.
26
1110439, 1110507
II.
The Takings Clause of § 23 Does Limit Municipalities
(And § 235 Does Not Dictate Otherwise)
Two provisions of the Alabama Constitution of 1901 are
germane to the issue before us, §§ 235 and 23.
To the extent
that the Town argues that § 23 does not apply to takings by
municipal corporations because § 235 instead applies, I do not
follow the Town's logic.
It is true that § 235 does apply to
municipal corporations.
This does not mean, however, that §
23 does not also apply to them. For the reasons discussed in
more detail in Part II.B., below, § 23 prevents a municipal
corporation from taking private property without compensating
the landowner therefor.
Before turning to § 23 per se,
however, I will first address the provisions of § 235.
A. Section 235 Does Not Empower Municipalities to Take
Property for Reasons Other than Constructing "Public Works"
Without Compensating the Landowner
The first critical point to be made concerning § 235 is
that § 235 is not the source of municipalities' power to take
property. That is, § 235 is not the provision that creates or
defines the nature of that power in municipalities. The first
sentence of § 235 simply begins with the following reference:
"Municipal ... corporations ... invested with the privilege of
taking property for public use...."
27
This language presumes
1110439, 1110507
that power to take property of some nature already has been
"invested" in a municipality apart from § 235 itself.
(The
source of the power in municipalities is discussed below.)
Accordingly, and this second point is closely tied to the
first, the fact that § 235 then continues by expressing
limitations or conditions (the payment of compensation) on
certain uses of that power (the "construction or enlargement
of
[the
municipal
corporation's]
works,
highways,
or
improvements") is no basis for concluding that the referenced
uses are the only possible uses of the power of eminent domain
by a municipality.
It means only that these are the uses of
the power of eminent domain as to which the drafters of § 235
chose to reiterate a limitation on municipalities in that
section, probably because the more general limitations imposed
by § 23 (as discussed below) were also in place and the uses
referenced in § 235 were the most commonly used purposes of
eminent domain by municipalities at that time.
See note 13,
infra.12
12
Of course, if this Court considers the purposes
specified in § 235 as the only purposes for which a
municipality is permitted to take property, then the Town is
in no better position as a result. If in fact, as discussed
in Part I of this writing, the Town's actions did in fact
28
1110439, 1110507
In other words, if, consistent with the discussion in
Part I of this writing, we accept the general notion that
"taking" of private property can entail more than just the
physical
taking
of
property
(i.e.,
a
taking
for
"the
construction or enlargement" of public works as addressed in
§ 235), then it is important to recognize what § 235 does and
does not say regarding those types of taking that it does
address.
What § 235 does say is that there is an affirmative
obligation on the part of a municipal corporation to pay
compensation whenever it does take or destroy property for the
construction or enlargement of a public-works project.
What
§ 235 does not say is that a municipal corporation can take or
destroy
private
property
only
for
the
construction
or
enlargement of public-works projects or, more importantly,
that if in fact a municipality does take or destroy private
property for some purpose other than for the construction or
enlargement of a public-works project, it need not worry about
compensating the landowner for that taking.
constitute a "taking," the purpose for which that taking
occurred in this case was not one of the purposes that the
Court will have found to be authorized by § 235.
29
1110439, 1110507
In his discussion of the relationship of §§ 235 and 23,
however, Justice Parker contends that an understanding of § 23
as limiting the authority of municipalities would be contrary
to the principle that §§ 23 and 235 should be read in pari
materia.
___
specially).
So.
3d
at
___
(Parker,
I find the converse to be true.
J.,
concurring
The limitations
on municipal action expressed in § 235 are entirely consistent
with the understanding that § 23 recognizes the rights of
private
landowners
and
a
corresponding
right
to
just
compensation when their property is "taken" by force of
governmental action.
As discussed above, § 235 simply makes
clear that there is in fact a right to receive compensation
when the taking is by a municipality for a public-works
project, this more than likely being the purpose for which it
was anticipated in 1901 that a municipality would take a
citizen's property.13
A reading of this affirmative language
13
As Justice Parker notes, municipal zoning ordinances did
not come into vogue until the early 1900s. Therefore, "[i]n
1901 ... the threat of regulatory 'takings' of property
through a municipality's authority to pass zoning regulations
wan not an obvious threat to an individual's property rights,"
___ So. 3d at ___, as was the threat of a physical taking for
use in a public-works project. The threat of the latter would
explain the decision of the drafters of the Constitution to
provide the additional, specific layer of protection
articulated in § 235. Understandably, as well, the specific
30
1110439, 1110507
as somehow negating the right to receive compensation in any
circumstance not described therein would be the reading that
would conflict with the plain language of § 23 and that would
run counter to the principle of reading the two provisions in
pari materia.
The specific provisions of § 235 do not negate
the more general protection afforded by § 23 to the citizens
of this State against the "general power of government" to
take their property without compensation.
Section
23
is
part
of
Article
I
of
the
Alabama
Constitution, an Article entitled "Declaration of Rights."
A
reading of § 235 that blocks the application of § 23 to
takings by municipal corporations also runs counter to the
assurance
in
another
provision
of
that
"Declaration
of
Rights," specifically § 36, that the rights recognized by that
Declaration will be held "inviolate" against "the general
power of government":
"[T]he enumeration of certain rights [in Article I]
shall not impair or deny others retained by the
people; and, to guard against any encroachments on
the rights herein retained, we declare that
everything in this Declaration of Rights is excepted
matters addressed in § 235 were not appropriate to the more
general "declaration of [individual] rights" and corresponding
limitation on governmental power to take property as expressed
in § 23.
31
1110439, 1110507
out of the general power of government, and shall
forever remain inviolate."
(Emphasis added.)
I therefore must conclude that what we have in § 235 is
simply a more specific assurance of the right to compensation
from a municipality when it acts in certain ways or, as
Justice
Parker
puts
it,
"a
further
limitation
upon
the
eminent-domain power" that is "specifically applicable to
corporations, including municipal corporations."
___ So. 3d
at ___.
In an effort to support the view that § 235 applies to
municipal corporations to the exclusion of § 23, however,
Justice Parker relies upon the 1911 case of Duy v. Alabama
Western R.R., 175 Ala. 162, 57 So. 724 (1911).
Specifically,
he infers from the analysis in Duy that § 23 applies only to
the State.
I do not read Duy as so holding.
The only question under consideration in the portion of
Duy quoted by Justice Parker was what limitations on taking
are imposed by the Constitution against the State:
"As to the state itself, the sole restraint in
the particular now important is Const. § 23, wherein
it is provided that 'private property shall not be
taken for, or applied to, public use, unless just
compensation be first made therefor.' Section 235 is
32
1110439, 1110507
addressed to the restraint of 'municipal and other
corporations and individuals invested with the
privilege of taking property for public use.' This
latter section [235] does not apply to the state
itself in the exercise of its sovereign power in
restraint of which, in so far as we are now
concerned, Const. § 23, alone operates."
175 Ala. at 173-75, 57 So. at 727-28.
The quoted passage
correctly notes that, as between §§ 23 and 235, the only
passage that applies to the State is § 23.
The fact that
§ 235 does not apply to the State, however, does not mean that
§ 23 does not apply to municipalities, and the passage quoted
from Duy certainly does not say that it does.
In short, there is nothing in the language of § 235 that
deprives landowners of the fundamental right guaranteed by
§ 23 of the Constitution merely because the governmental
entity
doing
the
"taking"
is
a
municipal
corporation.
Moreover, for the various reasons discussed below, the rights
expressed in § 23 and the limitations on governmental power
that inherently correspond to those rights clearly do apply to
"takings" by municipal corporations.
33
1110439, 1110507
B. Section 23 Limits Municipal Corporations
1. The Intrinsically Limited Nature of the Power
Section 23 of the Alabama Constitution, in its entirety,
reads:
"That the exercise of the right of eminent
domain shall never be abridged nor so construed as
to prevent the legislature from taking the property
and franchises of incorporated companies, and
subjecting them to public use in the same manner in
which the property and franchises of individuals are
taken and subjected; but private property shall not
be taken for, or applied to public use, unless just
compensation be first made therefor; nor shall
private property be taken for private use, or for
the use of corporations, other than municipal,
without the consent of the owner; provided, however,
the legislature may by law secure to persons or
corporations the right of way over the lands of
other persons or corporations, and by general laws
provide for and regulate the exercise by persons and
corporations of the rights herein reserved; but just
compensation shall, in all cases, be first made to
the owner; and, provided, that the right of eminent
domain shall not be so construed as to allow
taxation or forced subscription for the benefit of
railroads or any other kind of corporations, other
than municipal, or for the benefit of any individual
or association."
(Emphasis added.)
It
is
contended
municipalities
because
that
of
§
the
23
two
does
not
references
apply
to
legislature" in the first and fourth clauses of § 23.
to
"the
It is
clear, however, that these references do not mean that the
34
1110439, 1110507
power to take property, when exercised by a municipality, is
somehow less subject to the limitations expressed in the
above-emphasized "takings clause" than when that power is
exercised by the legislature itself.
Specifically, it is
clear that the limitations of § 23 are intended, in the words
of § 36 discussed above, as limitations on "the general powers
of government."
That is, the term "legislature" must be
treated as a reference to the State itself (much like the word
"Congress"
in
Constitution14
the
is
First
treated
Amendment
as
a
to
the
reference
United
to
the
States
federal
government generally15).
Moreover, the use of a reference to "the legislature" in
reference to restrictions on the power of the State to take
private property is particularly appropriate because of the
intrinsically legislative nature of that power. Although that
power to take private property does belong to the State as a
14
"Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the
Government for a redress of grievances."
15
Justice Parker agrees that "the Declaration of Rights
set forth in Article I, including the limitations on the power
of eminent domain in § 23, applies to the State generally, not
only to the legislature." ___ So. 3d at ___.
35
1110439, 1110507
sovereign entity, the specific repository of that power within
the State is in fact "the legislature."
The legislature may
vest some other agency of the government or some political
subdivision with the power, but when it does so it is a
portion of the legislature's power that is being vested.
Excluding the federal government, there is no other power to
take property.
The power that is held by the legislature is
the whole of it.
"The power of eminent domain belongs exclusively
to the legislative branch. The mode and manner of
the exercise of the power of eminent domain is
exclusively vested in the judgment and discretion of
the legislature, exercised through entities or
individuals authorized by statute. The executive
branch of the government cannot, without the
authority of some statute, proceed to condemn
property for its own uses. Likewise, the judiciary
can not exercise eminent domain, although it may
rearrange property rights in accordance with the law
without it being a taking of property."
26 Am. Jur. 2d Eminent Domain § 5 (footnotes omitted).
See
also, e.g., Green St. Ass'n v. Daley, 373 F.2d 1, 6 (7th Cir.
1967)
("The
power
of
eminent
domain
is
legislative
in
character.").
Section 23 defines a limitation on this power of eminent
domain held by the State through its legislature.
This Court
set forth the following concerning the power of eminent domain
36
1110439, 1110507
and its limitations in Gober v. Stubbs, 682 So. 2d 430, 433-34
(Ala. 1996):
"The power of eminent domain does not
originate in Article I, § 23. Instead, it
is a power inherent in every sovereign
state. Section 23 merely places certain
limits on the exercise of the power of
eminent domain. This Court stated in Steele
v. County Commissioners, 83 Ala. 304, 305,
3 So. 761, 762 (1887):
"'The
right
of
eminent
domain antedates constitutions,
and
is
an
incident
of
sovereignty, inherent in, and
belonging to every sovereign
State. The only qualification of
the [inherent] right is, that the
use for which private property
may be taken shall be public....
The constitution [of our State]
did not assume to confer the
power of eminent domain, but,
recognizing
its
existence,
[further] limited its exercise by
requiring that just compensation
shall be made.'"
(Emphasis added.)
Accordingly, if the power of eminent domain held by the
State and reposited in the legislature is characterized by
some limitation, then, by definition, some portion of that
power
given
by
the
legislature
to
characterized by that same limitation.
37
another
entity
is
Again, the power held
1110439, 1110507
in the first instance by the legislature is the whole of the
power of eminent domain in the State of Alabama.
There is no
other. The power given to a political subdivision, including
as in this case a municipal corporation, is but a portion of
the
same
power
that
resides
in
the
legislature.
See
generally, e.g., Peak v. City of Tuscaloosa, 73 So. 3d 5, 16
(Ala. Crim. App. 2011) ("Municipal corporations both possess
and
exercise
two
kinds
of
functions
and
powers,
one
governmental and the other proprietary or business. ... The
one is a part of the sovereign power of the state, delegated
by the Legislature." (emphasis added)); Cooper v. Town of
Valley Head, 212 Ala. 125, 126, 101 So. 874, 875 (1924)
(explaining that, "in the exercise of the police powers
conferred thereon, [a municipal corporation]
is essentially
a public agency, a local unit of government, invested with a
portion of the sovereign power of the state, for the benefit
of its inhabitants." (emphasis added)).16
If that power is
16
This principle is so fundamental as to predate our
existing Constitution:
"'There is, nevertheless, one clearly–defined
exception to the rule that the legislature shall not
delegate any portion of its authority. The
exception, however, is strictly in harmony with the
38
1110439, 1110507
limited in the hands of the State, then so it is in the hands
of a municipality.
2. The Limited Nature of Municipalities
All
of
this
may
also
be
viewed
from
the
slightly
different perspective that a municipality is a creature of the
State (and specifically of the legislature) that has no
inherent power of its own, but only that power the legislature
gives it.17
The State of Alabama (or our legislature, if one
general features of our political system, and it
rests upon an implication of popular assent which is
conclusive. The exception relates to the case of
municipal corporations. Such corporations being
considered parts of the machinery of the government,
governmental agencies necessary and most effective
to manage the local affairs of the people residing
in the designated locality, by custom immemorial a
portion of the political powers of the state has
been delegated to them, to be exercised in local
administrations; and the authority to delegate, if
not expressly incorporated in the constitution, may
be regarded as clearly implied.'"
Schultes v. Eberly, 82 Ala. 242, 244-45, 2 So. 345, 347 (1887)
(quoting with approval Cooley on Tax. 63) (emphasis added).
17
"'A municipal corporation is but a creature of
the State, existing under and by virtue of authority
and power granted by the State.' Hurvich v. City of
Birmingham, 35 Ala. App. 341, 343, 46 So. 2d 577,
579 (1950).
A municipality 'derives all of its
power from the state, and no municipality can
legislate beyond what the state has either expressly
or impliedly authorized.' Arrington v. Associated
39
1110439, 1110507
prefers) therefore cannot confer upon a municipality, as a
political subdivision of its creation, some authority or
ability to act in relation to the State's citizens that the
State, the creating entity, itself does not possess.
"[C]ities are political subdivisions of the state,
each created by the sovereign power of the state, in
accordance with the sovereign will, and each
exercising such power, and only such power, as is
conferred upon it by law....
"...
'Every power which is possessed by a
municipality is a power which is delegated to it by
the state....'"
Yeilding v. State ex rel. Wilkinson, 232 Ala. 292, 295, 167
So. 580, 582 (1936) (quoting State ex rel. Wilkinson v. Lane,
Gen. Contractors of America, 403 So. 2d 893, 902
(Ala. 1981).
Put another way, '[m]unicipal
corporations may exercise only such powers as are
expressly granted to them by the Legislature or
necessarily implied in or incident to the powers
expressly
conferred,
and
those
indispensably
necessary to the accomplishment of the objects of
the municipality.' Phenix City v. Putnam, 268 Ala.
661, 664, 109 So. 2d 836, 838 (1959)."
Peak v. City of Tuscaloosa, 73 So. 3d 5, 12 (Ala. Crim. App.
2011). Thus, "[a] municipal corporation has no inherent power
of eminent domain, and can exercise it only when expressly
authorized by the legislature ...." City of Birmingham v.
Brown, 231 Ala. 203, 207, 2 So. 2d 305, 308 (1941) (emphasis
added).
40
1110439, 1110507
181 Ala. 646, 62 So. 31, 34 (1913)).
Moreover, as the Court
in Yeilding continued:
"This statement of the law by this court in
[Wilkinson v.] Lane[, 181 Ala. 646, 62 So. 31
(1913)], finds direct and full support in the
following statement of the rule found in 43 Corpus
Juris, p. 76, § 15: 'A municipal corporation can
have no other source than the sovereign power; its
creation is an attribute of sovereignty. [A
municipal corporation] is a political creature, and
the creature cannot be greater than its creator.
Certain sovereign powers, such as legislative power,
and the power of eminent domain, are conferred on a
municipal corporation, and nothing less than
sovereign power can confer the supreme faculties
upon any creature; nor can he who has no sovereign
power confer any.'"
Yeilding, 232 Ala. at 295-96, 167 So. at 582 (emphasis added).
See also id., 232 Ala. at 297, 167 So. at 584 (referring to
the power of the legislature to delegate non-legislative
powers "which it may itself rightfully exercise."18
18
See also Johnston v. Alabama Pub. Serv. Comm'n, 287 Ala.
417, 420, 252 So. 2d 75, 77-78 (1971):
"[I]n exercising the power, [the legislature] can
select such agencies as it pleases, and confer upon
them the right to take private property subject only
to the limitations contained in the Constitution.
Accordingly it has been held that the right may be
conferred upon corporations, public or private, upon
individuals, upon foreign corporations, or a
consolidated company composed in part of a foreign
corporation, and upon the federal government. Such
has been the common practice since the Revolution,
41
1110439, 1110507
"A legislature may delegate part of its power
over local matters to local governments.
The
delegation of legislative power with respect to the
control of municipalities is subject to the usual
conditions and limitations, including that a
municipality may not be vested with powers that the
legislature itself does not possess, and local
legislation that conflicts with the general law of
the state is void."
56 Am Jur. 2d Mun. Corp. § 90 (2013) (emphasis added).
The legislature of Alabama has conferred upon the Town a
portion of the State's power to zone property19 and a portion
of the State's power to take private property for public
purposes.20
As discussed in Part I, neither of these powers
in the hands of the State could be used to accomplish an
and the right to do so has never been a matter of
serious question; and it may be regarded as settled
law that, in the absence of special constitutional
restriction, it is solely for the Legislature to
judge what persons, corporations or other agencies
may properly be clothed with this power."
(Emphasis added.) (Elsewhere, the Court in Johnston posited
that the term "confer," rather than "delegate," was
appropriate, given the Court's concern that the notion of
"delegating" power connoted a "divesting" of power by a
sovereign, something a sovereign cannot do.
287 Ala. at
420-21, 252 So. 2d at 77-78.
It appears that the authorities
that use the term "delegate" do so without intending to
suggest anything more than a sharing by the delegating
authority of some power it possesses.)
19
See § 11-52-70, Ala. Code 1975.
20
See § 11-47-170, Ala. Code 1975.
42
1110439, 1110507
uncompensated
"regulatory
taking"
of
M
&
N's
property.
Neither can they be so used by the Town.
3. Our Cases Apply § 23 to Municipalities
Consistent with all the foregoing, in a case relied upon
by the Town in its brief to this Court and characterized by
the Town itself as a § 23 case, the Alabama Court of Civil
Appeals recognized that "Article I, § 23, Ala. Const. (1901),
requires that before a municipality may take private property
for public use, it must pay just compensation to the property
owner."
Parrish v. City of Bayou La Batre, 581 So. 2d 1101,
1102 (Ala. Civ. App. 1990) (relying on § 23 to uphold a
municipality's exercise of its power of eminent domain).
See
also Opinion of the Justices No. 155, 264 Ala. 452, 88 So. 2d
778 (1956) (providing advisory opinion to the Governor of the
State
of
Alabama
applicability
of
in
§
23
a
manner
of
that
the
Alabama
contemplated
Constitution
the
to
municipalities); Chichester v. Kroman, 221 Ala. 203, 128 So.
166 (1930) (discussing § 23 and making no distinction between
the restraint it places on the State and the restraint it
places on municipal corporations). See also City of Dothan v.
Wilkes, 269 Ala. 444, 114 So. 2d 237 (1959) (citing both §§ 23
43
1110439, 1110507
and 235 as "constitutional ... provisions relating to eminent
domain [that] comprehend compensation for damage to property"
taken by a municipality for purposes of constructing a public
roadway);
Blankenship v. City of Decatur, 269 Ala. 670, 115
So. 2d 459 (1959) (treating § 23 as the applicable provision
governing the legality of an alleged taking by a municipality
of private property); Jones v. City of Huntsville, 47 Ala.
App. 595, 259 So. 2d 277 (Ala. Civ. App. 1971) (measuring
sewer assessment imposed by the City of Huntsville against the
restrictions of imposed by § 23).
III. Conclusion
Under § 23, the State cannot do indirectly by regulation
what
it
cannot
do
directly
by
a
physical
taking.
If,
notwithstanding the purported protection of the rights of
landowners and the corresponding limitation on State action as
expressed
in
§
23,
the
State
can
create
a
political
subdivision with the power to act free of those limitations,
then
the
purported
recognition
of
those
rights
and
the
purported assurance in § 36 that those rights will be held
"inviolate" against "the general powers of government" are
hollow.
44
1110439, 1110507
For the reasons discussed above, I respectfully dissent.
45
1110439, 1110507
MOORE, Chief Justice (concurring specially).
I agree with the main opinion on original submission that
a "regulatory takings" jurisprudence does not comport with
Art. I, § 23, Ala. Const. 1901. The underlying issues in this
case
are
an
unconstitutional
use
of
both
zoning
and
annexation. M & N Materials, Inc. ("M & N"), brought claims
for declaratory relief on those issues.1 The injury done to M
& N was done through zoning and annexation of land, not
through
eminent
regulatory
domain
takings
based
under
on
§
§
23.
23
does
Thus,
not
recognizing
address
the
underlying root causes that have impelled many state courts to
adopt Justice Oliver Wendell Holmes's "regulatory takings"
framework. Courts have no such creative powers, for the
Constitution gives the judiciary no legislative powers to say
what the law shall be for future applications.
Although the Court lacks the legislative power to create
new
remedies,
the
Court
has
1
power
to
strike
down
M & N sought a judgment declaring that "the annexation
of the subject property and/or the zoning restrictions placed
on the property as well as the other actions described herein,
void, invalid, and/or unconstitutional." M & N's claims for
declaratory relief were dismissed without prejudice after the
jury returned its verdict and thus may be reinstated following
the Town of Gurley's appeal.
46
1110439, 1110507
unconstitutional acts of legislative bodies. "[W]henever a
particular statute contravenes the Constitution, it will be
the duty of the judicial tribunals to adhere to the latter and
disregard
the
Hamilton),
at
former."
467
The
Federalist
(Clinton
Rossiter
No.
78
ed.,
(Alexander
1999).
"The
constitution of the State ... is the paramount, supreme law,
of
primary
obligation.
All
legislative
enactments
are
subservient to it, and if they conflict with it, are without
validity." City of Mobile v. Stonewall Ins. Co., 53 Ala. 570,
575 (1875). Because
"[w]here the will of the legislature declared in its
statutes, stands in opposition to that of the people
declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They
ought to regulate their decisions by the fundamental
laws,
rather
than
by
those
which
are
not
fundamental."
The Federalist No. 78, at 466.
I believe that taking and zoning are two separate issues.
Courts have adopted regulatory takings without addressing the
underlying
problem
of
unconstitutional
state
and
local
regulations. Thus, the fundamental issue is whether the Town
of
Gurley's
actions
are
constitutional
under
zoning
and
annexation law, not whether the Town's actions may be somehow
47
1110439, 1110507
converted
into
compensable
injuries
through
a
takings
construct. In this special writing, I will address Alabama's
laws governing zoning and annexation and explain why the text
of § 23 of the Constitution may not be applied to create
regulatory takings.
I. Zoning and Annexation
A. Zoning
Our general rule is that "[a]n arbitrary and capricious
ordinance should be set aside whether there is, or is not, a
comprehensive zoning plan." COME v. Chancy, 289 Ala. 555, 565,
269 So. 2d 88, 97 (1972). A zoning ordinance may be set aside
if it "'passes the bounds of reason and assumes the character
of a merely arbitrary fiat.'" Leary v. Adams, 226 Ala. 472,
476, 147 So. 391, 394 (1933). The ultimate test "is whether
the ordinance creates zones ... that ... are consistent with
the land use pattern of the area, and bear a substantial
relationship to the public health, safety, morals, and general
welfare." Chancy, 289 Ala. at 565, 269 So. 2d at 97.
Zoning may be "arbitrary and capricious" in several ways.
First, zoning that is inconsistent with a comprehensive plan
is
arbitrary
and
capricious.
48
Zoning
must
be
done
"in
1110439, 1110507
accordance with a comprehensive plan." § 11-52-72, Ala. Code
1975. "There must be a comprehensive plan. ... [T]he owner of
property may use it as he sees fit, provided it is not a
nuisance ... nor within the prohibition of zoning ordinances."
Davis v. City of Mobile, 245 Ala. 80, 82-83, 16 So. 2d 1, 3
(1943) (emphasis added).
Second, zoning that leaves the exercise of property
rights
to
the
whims
of
special
groups
is
arbitrary
and
capricious. "Nor can the exercise of property rights be left
to the caprice, whim or aesthetic sense of a special group of
individuals who may object to the use by a property owner of
the rights fixed by such ordinance or left unrestricted
thereby." Johnson v. City of Huntsville, 249 Ala. 36, 40, 29
So.
2d
v.•West,
342,
149
345
(1947).
Ala.
("'Ordinances
which
311,
See
314,
invest
City
42
a
Council
So.
city
of
1000,
council
Montgomery
1000
...
(1907)
with
a
discretion which is purely arbitrary, and ... exercised in the
interest of a favored few, are ... invalid.'" (quoting Smith
on the Modern Law of Municipal Corporations § 530)).
Third, zoning that lacks a substantial relation to the
public
health,
safety,
morals,
49
and
general
welfare
is
1110439, 1110507
arbitrary and unconstitutional. Village of Euclid, Ohio v.
Ambler Realty Co., 272 U.S. 365, 395 (1926). The police powers
may not be used to impose unreasonable and unnecessary zoning
ordinances
"upon
the
use
of
private
property....
[G]overnmental interference by zoning ordinances with such
use, is not unlimited, and ... should bear some substantial
relation to the public health, safety, morals, or general
welfare." Leary v. Adams, 226 Ala. at 474, 147 So. at 392.
This Court has said that constitutional rights "cannot be
abridged or destroyed under the guise of police regulations."
First Avenue Coal & Lumber Co. v. Johnston, 171 Ala. 470, 473,
54
So. 598, 599 (1911). See Panhandle E. Pipe Line Co. v.
State Highway Comm'n of Kansas, 294 U.S. 613, 622 (1935).
("The
police
power
of
a
state
...
is
subordinate
to
constitutional limitations."). Police powers are an aspect of
legislative power or the general power of government, or both.
See Art. IV, § 44 ("The legislative power of this state shall
be vested in a legislature ...." (emphasis added)), and Art.
I, § 36 ("[E]verything in this Declaration of Rights is
excepted out of the general powers of government, and shall
forever remain inviolate." (emphasis added)).
50
1110439, 1110507
However, the Constitution also protects the rights of
private property and confines the government to the sole
object of protecting the citizen's property. See Art. I, § 13,
Ala. Const. 1901 ("[E]very person, for any injury done him, in
his lands ... shall have a remedy by due process of law....");
Art. I, § 35, Ala. Const. 1901 ("That the sole object and only
legitimate end of government is to protect the citizen in the
enjoyment of life, liberty, and property....").
Thus, whether viewed as an aspect of general powers of
government referenced in Art. I, § 36, or the legislative
powers referenced in Art. I, § 44, a local government's use of
the police powers to enact zoning ordinances may not "abridge
or destroy" Alabama's constitutional protections of private
property contained in Art. I, §§ 13 and 35. Johnston, 171 Ala.
at 473, 54
So. at 599.
Fourth, spot zoning is arbitrary and capricious. Spot
zoning occurs when municipal officials attempt to partially
zone a municipality or zone by "piecemeal." Johnson v. City of
Huntsville, 249 Ala. 36, 29 So. 2d 342 (1947). As stated
above, "[a]n arbitrary and capricious ordinance [will] be set
aside [and] ... any theory of 'spot zoning' would have to give
51
1110439, 1110507
way to the larger principle." Chancy, 289 Ala. at 565, 269 So.
2d at 97. Alabama's rule limits spot zoning to cases where no
comprehensive plan exists. Shell Oil Co. v. Edwards, 263 Ala.
4, 9, 81 So. 2d 535, 540 (1955); Haas v. City of Mobile, 289
Ala. 16, 21, 265 So. 2d 564, 568 (1972).2
B. Annexation
The Town of Gurley's annexation of the quarry property is
another fundamental issue underlying this case. "Alabama's
statutory methods of annexation require that property owners
consent to the annexation
before an annexation of their
property can occur. See Ala. Code 1975, §[§] 11-42-1 through
11-42-88." City of Fultondale v. City of Birmingham, 507 So.
2d 489, 491 (Ala. 1987) (plurality opinion) (emphasis added)
(noting that unanimous consent is not required under all
methods of annexation). "'[A]n unreasonable annexation is
invalid or void.'" City of Birmingham v. Community Fire Dist.,
336
So.
Municipal
2d
502,
504
Corporations
(Ala.
§
1976)
7.23
2
(quoting
(Rev.
ed.,
2
McQuillin,
1966)).
"'[A]
Alabama follows the minority rule on spot zoning. The
majority rule is that "rezoning of a small tract of land out
of harmony and in conflict with a comprehensive plan may
constitute 'spot zoning.'" Haas, 289 Ala. at 21, 265 So. 2d at
568.
52
1110439, 1110507
municipal corporation may not extend its boundaries by the
annexation of territory ... where it would be unreasonable to
do so.'" Id.
II. Eminent Domain
The ultimate question, however, is whether there is an
additional
ground
for
relief
under
the
eminent-domain
provision of the Alabama Constitution. Section 23, Ala. Const.
1901, states, in relevant part: "[P]rivate property shall not
be
taken
for,
compensation
be
or
applied
first
to
made
public
therefor."
use,
unless
Since
just
so-called
"regulatory takings" were not recognized in 1901 when our
current Constitution was adopted, we have no direct evidence
as to whether the people intended for § 23 to apply to this
kind of case. Consequently, an exposition of § 23 is needed to
determine whether "regulatory takings" are prohibited by the
letter and the spirit of § 23.
The Dutch jurist Hugo Grotius first coined the term
"eminent domain" in his work De Jure Belli ac Pacis Libri Tres
("On the Law of War and Peace in Three Books"). Alberto B.
Lopez, Weighing and Reweighing Eminent Domain’s Political
Philosophies Post-Kelo, 41 Wake Forest L. Rev. 237, 245
53
1110439, 1110507
(2006). Grotius said the state had the power of eminent domain
"over its citizens and over the property of citizens for
public use." 2 Hugo Grotius, De Jure Belli ac Pacis Libri Tres
102 (Francis W. Kelsey trans., Oxford Univ. Press 1925)
(1625). According to Grotius, the proper exercise of eminent
domain had two requisites: "the first requisite is public
advantage; then, that compensation from the public funds be
made, if possible, to the one who lost his right." Id. at 385.
However, Grotius reasoned that the state had the power of
eminent domain because "full private ownership [of property]
was first acquired in common for the state or its head; and
that then a distribution was made individually to private
persons, in such a way, nevertheless, that their ownership was
dependent on that earlier ownership." Id. at 219. Thus,
Grotius reasoned that private property ultimately "belongs to
the state under the right of eminent domain." Id. at 807. This
rationale gave rise to Grotius’s rule:
"[T]he state, or he who represents the state, can
use the property of subjects, or even destroy it or
alienate it, not only in case of direct need ... but
also for the sake of public advantage; and to the
public advantage those very persons who formed the
body politic should be considered as desiring that
private advantage should yield."
54
1110439, 1110507
Id. Thus, Grotius believed that the state could take private
property for public use so long as just compensation was
given, but his reasoning suggests a liberal interpretation of
that rule: the state could use or exercise dominion over
private property so long as the state or the public considered
it desirable to the public advantage.
The common law also recognized the legislature’s right to
take private property for public use upon just compensation,
but under a rationale quite different from Grotius's, and one
that provided more protection to private-property owners.
Blackstone wrote:
"So great moreover is the regard of the law for
private property, that it will not authorize the
least violation of it; no, not even for the general
good of the whole community.... In vain may it be
urged, that the good of the individual ought to
yield to that of the community; for it would be
dangerous to allow any private man, or even any
public tribunal, to be the judge of this common
good, and to decide whether it be expedient or no.
Besides, the public good is in nothing more
essentially interested, than in the protection of
every individual’s private rights .... In this and
similar cases the legislature alone can, and indeed
frequently
does,
interpose,
and
compel
the
individual to acquiesce. But how does it interpose
and compel? Not by absolutely stripping the subject
of his property in an arbitrary manner; but by
giving him a full indemnification and equivalent for
the injury thereby sustained. The public is now
considered as an individual, treating with an
55
1110439, 1110507
individual for an exchange. All that the legislature
does, is to oblige the owner to alienate his
possessions for a reasonable price; and even this is
an exertion of power, which the legislature indulges
with caution, and which nothing but the legislature
can perform."
1 William Blackstone, Commentaries *139. Thus, unlike Grotius,
the common law held private-property rights in such a high
regard
that
the
common
good
alone
was
not
a sufficient
justification for violating them. This is because private
property is a gift of Almighty God, not the state:
"[W]e are informed by holy writ, the all-bountiful
Creator gave to man 'dominion over all the earth;
and over the fish of the sea, and over the fowl of
the air, and over every living thing that moveth
upon the earth.' This is the only true and solid
foundation of man's dominion over external things
.... The earth, therefore, and all things therein,
are the general property of all mankind, exclusive
of other beings, from the immediate gift of the
Creator."
2 William Blackstone, Commentaries *208. Grotius viewed the
power of eminent domain as the right of the state or the
public to exercise dominion over what was already theirs for
the sake of the public good. In contrast, the common law
viewed the power of eminent domain as the public acting "as an
individual, treating with an individual for an exchange." Id.
56
1110439, 1110507
The Fifth Amendment of the United States Constitution,
which was ratified in 1791, provides: "[N]or shall private
property be taken for public use, without just compensation."
Justice Thomas interprets the Fifth Amendment as follows:
"The most natural reading of the Clause is that
it allows the government to take property only if
the government owns, or the public has a legal right
to use, the property, as opposed to taking it for
any public purpose or necessity whatsoever. At the
time of the founding, dictionaries primarily defined
the noun 'use' as 'the act of employing any thing to
any purpose.' 2 S. Johnson, A Dictionary of the
English Language 2194 (4th ed. 1773).... The term
'use,' moreover, 'is from the Latin utor, which
means "to use, make use of, avail one's self of,
employ, apply, enjoy, etc."' J. Lewis, Law of
Eminent Domain § 165, p. 224, n. 4 (1888). When the
government takes property ... and the public has no
right to use the property, it strains language to
say that the public is 'employing' the property,
regardless of the incidental benefits that might
accrue to the public from the private use. The term
'public use,' then, means that either the government
or its citizens as a whole must actually 'employ'
the taken property. See id., at 223 (reviewing
founding-era dictionaries)."
Kelo v. City of New London, 545 U.S. 469, 508-09 (2005)
(Thomas, J., dissenting). Consequently, reading the natural
language of the Federal Constitution along with the historical
and philosophical backdrop of the common law, it appears that
the Founders understood the right of eminent domain to be the
right of the government to take private property only if the
57
1110439, 1110507
government or public would actually use it. This view comports
with Blackstone’s view of eminent domain as an exchange rather
than Grotius’s view of eminent domain as the state’s exercise
of dominion over private property for the public good.
Alabama’s original eminent-domain provision in the 1819
Constitution
provision
of
was
the
nearly
Federal
identical
to
Constitution:
the
eminent-domain
"[N]or
shall
any
person's property be taken or applied to public use, unless
just compensation be made therefor." § 13, Ala. Const. 1819.
Despite the fact that other parts of our current eminentdomain
provision are different from the Alabama Constitution
of 1819, the operative language at issue in this case is
essentially the same: "[P]rivate property shall not be taken
for, or applied to public use, unless just compensation be
first made therefor." § 23, Ala. Const. 1901.
Thus,
reading
§
23
in
light
of
Alabama’s
original
eminent-domain provision, the similar federal constitutional
provision, and the common law, the conclusion is that a
"taking" under § 23 requires an exchange between the State and
the private-property owner by which the State provides just
compensation for property that the State or the public will
58
1110439, 1110507
actually employ. Consequently, the Town of Gurley’s zoning
ordinance is not a "taking" under § 23. There has been no
exchange between the Town and M & N Materials, Inc., and
neither the public nor the State are going to use or employ
the property in question. On the contrary, instead of taking
the property so that the State or public can use it, the Town
has left the property with its owners but has restricted how
the private owner may use it. While this appears to be a case
of spot zoning, or at least arbitrary and capricious zoning,
it is not a taking under § 23.
III. Conclusion
This case is about zoning, not takings. Every act of
zoning is a "taking" in a sense, because the state takes some
rights of use away from the owner. Nevertheless, the type of
taking contemplated by § 23, Ala. Const. 1901, is a taking
where property is exchanged from the private-property owner to
the state for the state or public’s employment. Because the
Town of Gurley has not taken property in that manner in this
case, M & N’s injuries are not redressable through § 23, Ala.
Const. 1901. M & N still has a remedy available through
declaratory and injunctive relief, as do all private-property
59
1110439, 1110507
owners who are subjected to spot zoning or arbitrary and
capricious zoning ordinances. Thus, although I encourage M &
N to reinstate its claim for declaratory and injunctive
relief, I cannot grant M & N the relief it seeks by stretching
§ 23, Ala. Const. 1901, beyond what it says and means.
Therefore,
I
concur
in
overruling
rehearing.
60
the
applications
for
1110439, 1110507
PARKER, Justice (concurring specially).
I concur in the decision overruling the applications for
rehearing; I write specially to note the tension between this
Court's strong support for an individual's fundamental right
to property and this Court's exercise of judicial restraint in
interpreting the Alabama Constitution of 1901.
I also write
to note that M & N Materials, Inc. ("M & N"), is not without
a
remedy.
M
&
N
appropriately
challenged
the
constitutionality of the exercise of the police power by the
Town of Gurley ("the Town") in passing the at-issue zoning
ordinance; M & N's constitutional challenge was dismissed
without prejudice, and M & N intends to refile it.
Lastly, I
write to respond to Justice Murdock's substituted dissent.
First, an individual has a fundamental right to property.
William Blackstone defined an individual's property rights at
common law as including "the free use, enjoyment, and disposal
of all his acquisitions, without any control or diminution,
save only by the laws of the land."
Commentaries *134.
1 William Blackstone,
Consistent with Blackstone's view of an
individual's private-property rights as fundamental, in Smith
v. Smith, 254 Ala. 404, 409, 48 So. 2d 546, 549 (1950), this
61
1110439, 1110507
Court stated that "it should never be forgotten that the right
to control one's property is a sacred right which should not
be taken away without urgent reason." Indeed, property rights
have historically been provided strong protection in this
Country and have been the cornerstone in the development of
this nation. See Page Carroccia Dringman, Regulatory Takings:
The Search for a Definitive Standard, 55 Mont. L. Rev. 245,
248 n. 16 (1994) ("'Next to the right of liberty, the right of
property is the most important individual right guaranteed by
the [federal] Constitution and the one which, united with that
of personal liberty, has contributed more to the growth of
civilization than any other institution established by the
human race.' [Senator Steve Symms, The Private Property Rights
Act (1991),] at 11 (citing William H. Taft, 27th President of
the
United
States (1906)).
...
'The
moment
the
idea
is
admitted into society that property is not as sacred as the
laws of God, and there is not force of law and public justice
to protect it, anarchy and tyranny commence.' Id. at 11
(citing John Adams, 2d President of the United States (1821)).").
62
1110439, 1110507
In 1901, the year the current Alabama Constitution was
ratified, the threat of regulatory "takings" of property
through a municipality's authority to pass zoning regulations
was not an obvious threat to an individual's property rights.3
In 1926, the Supreme Court of the United States recognized the
inconspicuous threat zoning laws posed to property rights in
3
Although our current Constitution was ratified in 1901,
the antecedent to § 235 is Art. XIV, § 7, Ala. Const. 1875,
which states:
"Municipal and other corporations and individuals
invested with the privilege of taking private
property
for
public
use,
shall
make
just
compensation for the property taken, injured, or
destroyed by the construction or enlargement of its
works, highways, or improvements, which compensation
shall be paid before such taking, injury, or
destruction.
The
general
assembly
is
hereby
prohibited from depriving any person of an appeal
from any preliminary assessment of damages against
any such corporations or individuals made by
viewers, or otherwise; and the amount of such
damages in all cases of appeal shall, on the demand
of either party, be determined by a jury according
to law."
Article XII, § 235, Ala. Const. 1901, set forth infra, was not
an entirely novel constitutional provision, but was derived
from Art. XIV, § 7, Ala. Const. 1875.
See Opinion of the
Justices No. 133, 259 Ala. 524, 526-27, 67 So. 2d 417, 419-20
(1953) (noting that Art. XII, § 235, Ala. Const. 1901, used
language identical to that used in Art. XIV, § 7, Ala. Const.
1875, and added additional language). Therefore, § 235 was
essentially drafted prior to or in 1875.
63
1110439, 1110507
Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365,
386 (1926), its landmark decision concerning zoning laws:
"Building zone laws are of modern origin. They began in this
country about 25 years ago."
In fact, it was not until 1909
that Los Angeles, California, became the first major American
city to enact a zoning ordinance. Michael Lewyn, New Urbanist
Zoning for Dummies, 58 Ala. L. Rev. 257, 262 (2006).
New York
City followed suit in 1916, and municipalities' use of zoning
laws then spread rapidly throughout America.
Id.
By 1920,
904 cities had zoning ordinances, and, later in the 1920s,
recognizing the growing use of local zoning ordinances, the
Federal Department of Commerce drafted a model Standard State
Zoning Enabling Act.
Id.
zoning
America
ordinances
in
I include this brief history of
to
demonstrate
that
zoning
ordinances passed by local municipalities were nonexistent and
unforeseeable in Alabama when the current Alabama Constitution
was ratified in 1901.
The applicable provision of our Constitution is Article
XII, § 235, Ala. Const. 1901, which states:
"Municipal
and
other
corporations
and
individuals invested with the privilege of taking
property
for
public
use,
shall
make
just
compensation, to be ascertained as may be provided
64
1110439, 1110507
by law, for the property taken, injured, or
destroyed by the construction or enlargement of its
works, highways, or improvements, which compensation
shall be paid before such taking, injury, or
destruction. The legislature is hereby prohibited
from denying the right of appeal from any
preliminary assessment of damages against any such
corporations or individuals made by viewers or
otherwise, but such appeal shall not deprive those
who have obtained the judgment of condemnation from
a right of entry, provided the amount of damages
assessed shall have been paid into court in money,
and a bond shall have been given in not less than
double the amount of the damages assessed, with good
and sufficient sureties, to pay such damages as the
property owner may sustain; and the amount of
damages in all cases of appeals shall on demand of
either party, be determined by a jury according to
law."
Section 235 plainly states that compensation is due a property
owner when his land has been "taken, injured, or destroyed by
the construction or enlargement of [a municipality's] works,
highways, or improvements ...."
(Emphasis added.)
In other
words, under § 235, compensation is due when property is taken
by a municipality for public works.
mandated
in
a
for-public-works
When compensation is
situation,
it
precludes
regulatory "takings" through zoning.
In my dissent to Chism v. Jefferson County, 954 So. 2d
1058
(Ala.
2006),
I
stated
constitutional interpretation:
65
the
following
concerning
1110439, 1110507
"Constitutions, in order to effectively protect
the rights of the people, must be accessible to
them, or at least to the average educated citizen.
Consistent with this purpose, '[a] constitution,
properly conceived, deals with basic principles and
policies,
and
omits
specific
applications,'
Eliasberg Bros. Mercantile Co. v. Grimes, 204 Ala.
492, 498, 86 So. 56, 58 (1920).
"Thus, proper interpretation of a constitutional
text must begin with the ordinary usage of the words
of the text, which we call its 'plain meaning.' As
this Court has explained with respect to statutory
interpretation:
"'"Words used in a statute must be given
their
natural,
plain,
ordinary,
and
commonly understood meaning, and where
plain language is used a court is bound to
interpret that language to mean exactly
what it says. If the language of the
statute is unambiguous, then there is no
room for judicial construction and the
clearly expressed intent of the legislature
must be given effect."'
"Blue Cross & Blue Shield v. Nielsen, 714 So. 2d
293, 296 (Ala. 1998) (quoting IMED Corp. v. Systems
Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.
1992)). Furthermore, Courts are 'not at liberty to
disregard or restrict the plain meaning of the
provisions of the Constitution.' McGee v. Borom, 341
So. 2d 141, 143 (Ala. 1976)."
954 So. 2d at 1099 (Parker, J., dissenting).
Further, in Ex
parte James, 836 So. 2d 813, 834-35 (Ala. 2002), this Court
set
forth
the
following
caution
interpret the Constitution:
66
concerning
its
duty
to
1110439, 1110507
"And like the United States Supreme Court's duty
with regard to the federal constitution, our status
as final arbiter imputes to us a particularly
important
duty
with
regard
to
the
Alabama
Constitution, because while our interpretations of
statutes can be, in a sense, 'overruled' by
subsequent
legislative
enactment,
our
interpretations of the Alabama Constitution are
beyond legislative alteration. See Marsh v. Green,
782 So. 2d 223, 232 (Ala. 2000) (noting that, in
cases involving constitutional adjudication, the
doctrine of stare decisis plays little role
'because, in such cases, "'"correction through
legislative action is practically impossible."'"'
(quoting Seminole Tribe of Florida v. Florida, 517
U.S. 44, 63, 116 S. Ct. 1114, 134 L. Ed. 2d 252
(1996))); see also Agostini v. Felton, 521 U.S. 203,
235, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997)
(noting that the policy which undergirds the
principle of stare decisis -- that sometimes 'it is
more important that the applicable rule of law be
settled than that it be settled right' -- 'is at its
weakest when we interpret the Constitution because
our
interpretation
can
be
altered
only
by
constitutional amendment or by overruling our prior
decisions' (quoting Burnet v. Coronado Oil & Gas
Co., 285 U.S. 393, 406, 52 S. Ct. 443, 76 L. Ed. 815
(1932) (Brandeis, J., dissenting))); City of Boerne
v. Flores, 521 U.S. 507, 535–36, 117 S. Ct. 2157,
138 L. Ed. 2d 624 (1997) (discussing Congress's
inability to change the Court's interpretation of
the United States Constitution); Napue v. Illinois,
360 U.S. 264, 271, 79 S. Ct. 1173, 3 L. Ed. 2d 1217
(1959) (noting that the Supreme Court has a 'solemn
responsibility for maintaining the Constitution
inviolate') (citing Martin v. Hunter's Lessee, 14
U.S. (1 Wheat.) 304, 4 L. Ed. 97 (1816); and Cooper
v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5
(1958))."
67
1110439, 1110507
In his article Interpreting the Alabama Constitution, 71
Ala. Law. 286 (July 2010), Marc James Ayers, discussing Ex
parte
Melof,
735
So.
2d
1172
(Ala.
1999),
set
forth
a
cautionary tale concerning this Court's role as final arbiter
of the Alabama Constitution:
"In [Ex parte] Melof, [735 So. 2d 1172 (Ala.
1999),] the [C]ourt corrected an erroneous line of
decisions that had actually created and relied upon
a constitutional provision -- an 'equal protection
provision' -- where none existed in the Alabama
Constitution of 1901. It was undisputed that such a
provision existed in earlier Alabama constitutions
but that it had been intentionally removed in the
1901 Constitutional Convention in an overall effort
to hinder black Alabamians. However, in 1977 the
court ruled (based on a scrivener's error, as it
turns out) that various other constitutional
provisions somehow combined to form the essence of
an 'equal protection provision' similar to, but not
necessarily identical to, the Equal Protection
Clause of the Fourteenth Amendment to the United
States Constitution. This 'provision' had no
specific text (and therefore no history to be
examined), but was merely the 'spirit' behind
several different provisions.
"Like
the
federal
Constitution's
Equal
Protection Clause, an equal protection provision in
the Alabama Constitution would carry with it certain
substantive limitations on the state, and could be
interpreted as providing much greater limitations
than those provided under the Equal Protection
Clause. And as this 'provision' was allegedly part
of the Alabama Constitution, any ruling by the
Alabama Supreme Court under that provision would not
be reviewable by the United States Supreme Court.
The 'phantom equal protection provision' was used in
68
1110439, 1110507
striking down as unconstitutional tort reform
legislation
and
in
attempting
to
judicially
restructure the funding of Alabama's educational
system.
"The phantom equal protection provision finally
met its end in Melof. In that decision, the [C]ourt
stressed
that
it
could
not
simply
create
constitutional provisions under the guise of
'interpretation,' and that, even though several
decisions had relied on the phantom provision, the
principle of stare decisis could not ... apply to
uphold
a
wholly
unfounded
constitutional
interpretation. Although several of the justices
made it clear that they personally desired that the
Alabama Constitution contain an equal protection
provision -- Justice Houston even included in his
special writing a letter to members of all three
branches of Alabama's government expressing this
desire -- they also made it clear that a strong
desire to see the constitution written differently
does not provide grounds for the judiciary to simply
declare it to be so.
"Three justices dissented, led by Justice Cook.
Although admitting that the Alabama Constitution of
1901 did not have an express 'equal protection
provision,' the dissenting justices argued that the
essence of such a provision is found in and among
other constitutional provisions. Justice Cook
accurately described how the actions of the
Constitutional Convention of 1901 were explicitly
undergirded with racist motivations, including the
Convention's elimination of the equal protection
provision. Justice Cook's eloquent opinion provided
much support for the general concept of equal
protection under the law and for the inclusion of an
equal protection clause in Alabama's Constitution.
He also argued that some other states do not have an
explicit 'equal protection provision' but have
nonetheless construed their state constitutions to
include one.
69
1110439, 1110507
"Although he wrote the majority opinion, Justice
Houston also filed a special concurrence in which he
responded to Justice Cook's impassioned defense of
an implicit equal protection provision. Justice
Houston felt the force of Justice Cook's arguments
(especially Justice Cook's accurate description of
the racist motivations behind the framing of the
Alabama Constitution of 1901), but explained how the
framers' abuse of power only served as more reason
to show judicial restraint, even when it hurts in
the short term:
"'Among Supreme Court Justices, the
notion of truth should be paramount. As
demonstrated
by
Justice
Cook's
well-documented account of the racially
biased forces that were present at the
Constitutional Convention of 1901, we have
all seen how much damage can be done by the
State when truth is overlooked in favor of
expedience and power. If I have done
anything by consistently pointing out what
is unfortunately but unmistakably true -that Alabama's Constitution currently has
no equal-protection clause -- I have
attempted to keep the Court from corrupting
not only the Constitution, but itself as
well. We pour corruption on both sacred
entities by failing to resist the urge to
drink from the chalice of illegitimate, but
available, power. With that understood, I
want to underscore one unavoidable truth:
that the power to amend the Constitution
rests with the people of the State of
Alabama, not with the members of this
Court.
"'....
"'We must recognize that we cannot
change our history, no matter how egregious
70
1110439, 1110507
or embarrassing our history might be. It is
precisely because individuals who govern
can do some egregious things with the power
that has been given them that we have the
concept of the constitution -- a legal
document meant to achieve two primary
goals. First, a constitution establishes a
particular form of government. Second, a
constitution, as the solidifying agent of
the rights recognized by the government,
protects the individual against the whim of
those in power.
"'As a legal document, a constitution
does not change on its own. The very
purpose of protecting individuals would be
undermined
if
those
in
charge
of
interpreting the constitution were to add
or delete provisions to reflect 'changes in
society.' Why? Because both the question of
who selects the interpreter and the
question of what counts as a 'change in
society' will be decided by those in power
at any particular time. No, as a legal
document, a constitution can change only if
the parties who gave effect to the document
-- the people -- call for change. This
recognition of the exclusive right of the
people to change their own constitution is
inherent in the amendment procedure.
"'....
"'Such is the danger of sitting on the
highest court of any sovereign when that
court is interpreting the sovereign's own
constitution. With no threat of being
overruled, we can wield our words in any
way that we like, knowing that they will be
given the full effect of law. In this way,
the nature of being Supreme Court Justices
creates a dangerous dynamic. As we are
71
1110439, 1110507
sworn in, we are handed -- by the people -a powerful sword: our ability to state what
the law is. At the same time, we are placed
inside a paper boundary -- a written
constitution -- and told by the people
'this far you may go, and no further.' The
problem is that the sword can easily sever
the boundary and we can escape its limits,
perhaps with the notion of 'doing justice.'
Once the boundary is severed, however, it
is not easily repaired; and the next judge,
now not bound, is free to do either justice
or evil. As judges, then, we are entrusted
by the people to use that sword wisely and
with restraint; to stay within the boundary
no matter how strongly we think it too
small to meet the people's needs. The
people made the boundary; it is for the
people to enlarge it.
"'It is true, as Justice Cook points
out, that racist motives were behind the
action
of
the
1901
Constitutional
Convention eliminating the equal-protection
clause from our Constitution. The fact that
we still do not have an equal-protection
clause in our Constitution is certainly
troubling. It is just this kind of
situation that sparks in all of us such an
emotional indignation that we want to
correct this wrong as fast as possible, in
any way possible .... To be sure, a
judicial declaration [creating an 'equal
protection provision'] would be much faster
and easier than a constitutional amendment.
Also, I am sure that the general population
would
overwhelmingly
support
such
a
declaration. There would be very little
resistance or grumbling among the citizens
of Alabama, so why not?
72
1110439, 1110507
"'The problem, of course, as I have
illustrated above, is that while such a
popular declaration may be all right today,
we must ask: What about tomorrow's judge
and tomorrow's issue? If we are not
restrained to the text of the Constitution;
if we current Justices can amend it today
by judicial declaration to include a
provision that the people have not put
there, will the next 'declaration' be so
favorable? As Justice Cook has made clear
in his dissent, those with power can do
some horrible things for some horrible
reasons. It is naive to think that
something like that could not happen again.
As the saying goes, those who do not pay
attention to history are doomed to repeat
it.
"'Might does not make right. We should
not, simply because we can, shift the power
to amend the Constitution from the hands of
the people into the hands of nine Supreme
Court Justices. I wholeheartedly believe
that the Alabama Constitution should have
an equal-protection clause, but I do not
believe in obtaining it by a method that
would turn this Court into an autonomous
super-legislature. ...'
"The Alabama Supreme Court has continued to hold
fast to this interpretive philosophy of judicial
restraint. And, as it must be, this philosophy is at
the heart of the various rules and methods of
constitutional interpretation that have been adopted
by the Alabama appellate courts."
71 Ala. Law. at 289-90.
As fervently as I desire to protect the fundamental
property rights of Alabamians, §§ 23 and 235 of the Alabama
73
1110439, 1110507
Constitution
compensable.
simply
do
not
make
a
regulatory
"taking"
It would be unwise to throw to the wind the
caution set forth by this Court in James and declare that §§
23 and 235 of our Constitution makes regulatory "takings"
compensable.
Constitution
Such
would
an
not
"interpretation"
be
based
on
of
the
the
text
Alabama
of
Constitution, but upon what I believe the law ought to be.
the
As
set forth by Justice Houston in his special writing in Melof,
supra, set forth at length in Ayers's article quoted above,
the people of Alabama, by ratifying the Alabama Constitution,
have established a paper boundary -- the Constitution -- that
this
Court
must
not
personally desires.
cavalierly
breach based
on
what
it
Declaring a constitutional right where
one does not exist, no matter how much I desire it, would
violate my principles of judicial restraint, and turning a
blind eye to the express for-public-works limitation in our
pre-zoning 1901 constitutional provision would violate my
principles of strict constructionism.
Next, I also write to express that this Court's decision
in Town of Gurley v. M & N Materials, Inc., [Ms. 1110439,
1110507, December 21, 2012] ___ So. 3d ___ (Ala. 2012), does
74
1110439, 1110507
not bar M & N from seeking relief from the Town's zoning
regulations under alternate legal theories available to M & N.
First, M & N could have maintained its claim that it initially
filed
under
the
Fifth
Amendment
to
the
United
States
Constitution. M & N voluntarily dismissed its Fifth Amendment
claim and proceeded only under the Alabama Constitution,
thereby forgoing any protections afforded M & N under the
federal Constitution.
In fact, M & N must seek compensation
through any procedures a State may have provided for doing so
before its Fifth Amendment claim is ripe for adjudication; in
other words, M & N must be denied just compensation before it
has a Fifth Amendment claim.
See Williamson Cnty. Reg'l
Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S.
172, 194-95 (1985) ("A ... reason the taking claim is not yet
ripe is that respondent did not seek compensation through the
procedures the State has provided for doing so. The Fifth
Amendment does not proscribe the taking of property; it
proscribes taking without just compensation. ... Similarly, if
a State provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation of
the Just Compensation Clause until it has used the procedure
75
1110439, 1110507
and been denied just compensation."); and San Remo Hotel, L.P.
v. City & County of San Francisco, California, 545 U.S. 323,
346 (2005) ("The requirement that aggrieved property owners
must seek 'compensation through the procedures the State has
provided for doing so,' [Williamson County,] 473 U.S., at 194,
does not preclude state courts from hearing simultaneously a
plaintiff's request for compensation under state law and the
claim that, in the alternative, the denial of compensation
would
violate
the
Fifth
Amendment
of
the
Federal
Constitution."); see also Kenneth B. Bley, Use of the Civil
Rights Act to Recover Damages in Land Use Cases, SM040 ALI-ABA
207 (American Law Institute 2007)(also published in Inverse
Condemnation and Related Government Liability: The Response
from State and Federal Courts, Legislatures, and Initiatives,
and How It Affects Your Client Today (American Law Institute
2007)).
Second, M & N may refile its claims for a declaratory
judgment and injunctive relief that were dismissed without
prejudice by the trial court.
In an amended complaint filed
by M & N in the trial court, M & N requested a declaratory
judgment and injunctive relief on the basis that the zoning
76
1110439, 1110507
ordinance at issue in this case was "void, invalid, and/or
unconstitutional."
M
&
N's
claim
challenged
as
unconstitutional the Town's use of its police power, not its
use of its conferred power of eminent domain.
In Haas v. City of Mobile, 289 Ala. 16, 20, 265 So. 2d
564, 567 (1972), this Court stated: "It is well established in
our jurisdiction that zoning is a legislative act, Ball v.
Jones, 272 Ala. 305, 132 So. 2d 120 [(1961)], which rests on
the exercise of police powers of a municipality, Fleetwood
Development Corp. v. City of Vestavia Hills, 282 Ala. 439, 212
So. 2d 693 [(1968)]."
See also Leary v. Adams, 226 Ala. 472,
474, 147 So. 391, 392 (1933) ("The authority for zoning laws
is
found
Ziegler,
within
the
Rathkopf's
bounds
The
Law
of
the
police
of
Zoning
&
power
Planning
....");
§
1:2
("Police power in the land-use control context encompasses
zoning and all other government regulations which restrict
private owners in their development and use of land.").
This Court has distinguished between an exercise of a
municipal corporation's police power and the exercise of its
conferred power of eminent domain and the remedies available
to a property owner in relation to a municipal corporation's
77
1110439, 1110507
exercise of those powers.
In City of Mobile v. McClure, 221
Ala. 51, 127 So. 832 (1930), the City of Mobile cut down a
tree situated on property the City of Mobile did not own but
that was adjacent to a street it did own; the owner of the
property upon which the tree was situated sought damages.
In
discussing the difference between a municipality's police
power and its conferred power of eminent domain, this Court
stated:
"The fundamental questions of law which are
involved have been settled in this state, and need
no further discussion. Briefly stated, they are: (1)
That if the tree was cut by the city while engaged
in the construction or enlargement of the works,
highways, or improvements of the city, and the
property of the lot owner is thereby injured or
destroyed, the city is liable in damages to the
extent of an amount which would award just
compensation therefor. Const. § 235; McEachin v.
Tuscaloosa, 164 Ala. 263, 51 So. 153 [(1909)];
Birmingham v. Graves, 200 Ala. 463, 76 So. 395
[(1917)]. (2) That if the tree is cut in the
exercise of the police power of the city, in caring
for the health, comfort, and general welfare of the
inhabitants thereof, and was not an arbitrary,
corrupt, or a manifest abuse of the right of such
police power, and not rendered in an improper or
negligent manner, the city is not liable in damages
for doing so. Birmingham v. Graves, supra; Southern
Bell v. Francis, 109 Ala. 224, 19 So. 1, 31 L. R. A.
193, 55 Am. St. Rep. 930 [(1896)]; 4 McQuillin,
Municipal Corporations (2d Ed.) § 1431; 38 Cyc.
528."
78
1110439, 1110507
221 Ala. at 52, 127 So. at 833.
This Court later recognized
the same principle in Jefferson County v. Southern Natural Gas
Co., 621 So. 2d 1282, 1287-88 (Ala. 1993):
"Although there is no Alabama case directly on
point, we note that there is a distinction between
the 'taking' of or 'injury' to property pursuant to
police powers and a 'taking' of or 'injury' to
property that is compensable under § 235. For
example, when the property taken is itself a
nuisance, so that the authority must act, then that
taking would be within the exercise of the police
power and would not be compensable if it was not
achieved in an arbitrary or corrupt manner and did
not amount to an abuse of the police power. See,
e.g., City of Mobile v. McClure, 221 Ala. 51, 127
So. 832 (1930); City of Birmingham v. Graves, 200
Ala. 463, 76 So. 395 (1917). However, if the
authority is enlarging or improving something, e.g.,
a highway or a creek, and in achieving that
enlargement or improvement it must 'take' or
'injure' property that is not itself a nuisance or
is not the reason for the project, then that
'taking' of or 'injury' to the property would be
constitutionally compensable. See City Council of
Montgomery[ v. Maddox, 89 Ala. 181, 7 So. 433
(1890)]; see, also, McEachin v. Mayor of City of
Tuscaloosa, 164 Ala. 263, 51 So. 153 (1909); Town of
Avondale v. McFarland, 101 Ala. 381, 13 So. 504
(1893); Panhandle Eastern Pipe Line Co.[ v. State
Highway Comm'n of Kansas, 294 U.S. 613, 622, 55 S.
Ct. 563, 567, 79 L. Ed. 1090 (1935)]."
Based on the above cases, a property owner may challenge a
municipal corporation's actions that the owner alleges are an
abuse of its police power.
Such a challenge would not be an
inverse-condemnation action unless the municipal corporation
79
1110439, 1110507
has taken property, under its conferred power of eminent
domain, "by the construction or enlargement of its works,
highways, or improvements." However, in the present case, the
Town did not exercise its conferred power of eminent domain by
the construction or enlargement of its works, highways, or
improvements; instead, the Town exercised its police power in
enacting the at-issue zoning ordinance.
Lauderdale
Lakes,
816
F.2d
1514,
See Corn v. City of
1517-19
(11th
Cir.
1987)(recognizing a distinction in Florida law between a
municipal corporation's police power and its conferred power
of eminent domain).
It is well established under Alabama law that a property
owner
may
challenge
the
constitutionality
of
a
zoning
ordinance passed pursuant to a municipal corporation's police
power.
So.
2d
See Budget Inn of Daphne, Inc. v. City of Daphne, 789
154,
159
(Ala.
2000)(determining
that
certain
provisions of a zoning ordinance passed by a municipality were
arbitrary and capricious and striking down those provisions).
In fact, M & N indicated in its brief filed on original
submission that its constitutional challenge of the at-issue
zoning ordinance was an alternative claim to its inverse-
80
1110439, 1110507
condemnation claim and that its constitutional challenge could
be reinstated if the trial court's judgment in favor of M & N
on M & N's inverse-condemnation claim was reversed. The trial
court's judgment in favor of M & N on M & N's inversecondemnation claim has been reversed; thus, M & N is free to
refile its constitutional challenge to the at-issue zoning
ordinance.
M & N would be afforded the relief it seeks if it
were to prevail on its constitutional challenge of the atissue zoning ordinance.
Lastly,
I
write
to
respond
to
Justice
Murdock's
substituted dissent. Initially, I note that Justice Murdock's
dissent is entirely dependant upon distinguishing Willis v.
University of North Alabama, 826 So. 2d 118 (Ala. 2002), in
which this Court held that "§ 23 applies when a physical
taking of the property in question has occurred."
at ___ (interpreting Willis).4
___ So. 3d
Ignoring Willis, Justice
4
I note that this Court has not been asked to overrule
Willis either in the parties' briefs or at oral argument; in
fact, counsel for M & N stated at oral argument that M & N was
not requesting that Willis be overruled.
In Clay Kilgore
Construction, Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893,
898 (Ala. 2006), this Court stated:
"[W]e are not inclined to abandon precedent without
a specific invitation to do so. 'Stare decisis
81
1110439, 1110507
Murdock concludes that the plain language of § 23 makes
compensable
a
regulatory
"taking."
Justice
Murdock's
erroneous conclusion that § 23 makes compensable regulatory
takings leads him to the misguided conclusion that § 23
applies to municipal corporations.
First, I will address Justice Murdock's position that
Willis does not apply in this case because it is factually
distinguishable.
On original submission in Town of Gurley, a
majority of this Court affirmed this Court's interpretation of
§ 23 in Willis that § 23 does not make compensable regulatory
"takings."
In Town of Gurley, a majority of this Court
rejected Justice Murdock's attempt to distinguish Willis from
the present case and held as follows:
"In Willis, a property owner owned property
across the street from a parking lot owned by the
University of North Alabama ('UNA'). UNA built a
multilevel parking deck on its parking lot; it was
assumed that the construction of the parking deck
reduced the value of the property owner's property.
As a result, the property owner 'filed an inversecondemnation action against UNA, based on the
allegation that UNA "took" his property without
commands, at a minimum, a
this Court that makes it
controlling precedent when
so.' Moore[ v. Prudential
P'ship], 849 So. 2d [914,]
82
degree of respect from
disinclined to overrule
it is not invited to do
Residential Servs. Ltd.
926 [(Ala. 2002)]."
1110439, 1110507
"just compensation," in violation of § 23 ....' 826
So. 2d at 119. This Court held that even though the
property owner's property was injured, 'since no
portion of Willis's property was "taken," or applied
to public use by UNA, UNA was not required to
compensate Willis under § 23.'[5] 826 So. 2d at 121.
Also significant to the holding in Willis was the
overruling of certain holdings in Foreman v. State,
676 So. 2d 303 (Ala. 1995), as follows:
"'Foreman v. State, 676 So. 2d 303
(Ala.
1995),
involved
an
inverse-condemnation
action
in
which
compensation was sought under § 23 of the
Constitution of Alabama of 1901. In
Foreman, this Court held that in "'inverse
condemnation
actions,
a
governmental
5
Section 23 states, in pertinent part:
"That the exercise of the right of eminent
domain shall never be abridged nor so construed as
to prevent the legislature from taking the property
and franchises of incorporated companies, and
subjecting them to public use in the same manner in
which the property and franchises of individuals are
taken and subjected ...."
(Emphasis added.)
Section 235 states, in pertinent part:
"Municipal
and
other
corporations
and
individuals invested with the privilege of taking
property
for
public
use,
shall
make
just
compensation, to be ascertained as may be provided
by law, for the property taken, injured, or
destroyed by the construction or enlargement of its
works, highways, or improvements, which compensation
shall be paid before such taking, injury, or
destruction."
(Emphasis added.)
83
1110439, 1110507
authority need only occupy or injure the
property in question.'" 676 So. 2d at 305
(quoting Jefferson County v. Southern
Natural Gas Co., 621 So. 2d 1282, 1287
(Ala. 1993)) (emphasis added in Foreman).
However, in Jefferson County, the Court was
applying § 235 of the Alabama Constitution,
not § 23. As we have already noted, § 235
does not apply to the State. Finnell v.
Pitts, 222 Ala. 290, 132 So. 2 (1930). To
the extent that Foreman (and Barber v.
State, 703 So. 2d 314 (Ala. 1997), which
relied on Foreman), held that under § 23
"'a governmental authority need only occupy
or injure the property in question,'" those
holdings are incorrect and are hereby
overruled.'
"Therefore, it is clear, under the plain
language of § 23 and under Willis, that the trial
court properly held that § 23 does not apply in this
case. It is undisputed that there was not an actual
taking in this case and that M & N has complained
only of administrative and/or regulatory actions
taken by the Town.
Willis makes clear that § 23
applies when a physical taking of the property in
question has occurred. In the present case, M & N
does not allege that there was a physical taking of
the property in question."
___ So. 3d at ___ (footnote omitted).
Justice Murdock's
dissent does not address the significant holding in Willis
overruling in part Foreman v. State, 676 So. 2d 303 (Ala.
1995). We held in Willis, by overruling Foreman in part, that
under § 23 a state governmental authority must occupy property
in order to constitute a taking; injury to the property caused
84
1110439, 1110507
by anything other than physical invasion is not compensable
under the language of § 23.
Whether the facts of Willis are
distinguishable from the present case is inconsequential; the
holdings
of
Willis
apply,
and
no
effort
to
address
the
significance of those holdings in that case has been made.
Justice
Murdock's
reliance
upon
the
unestablished
proposition that Willis does not apply to the present case
and, thus, that § 23 makes compensable regulatory "takings"
appears to lead him to struggle with the unfounded notion that
§ 235 provides less of a limitation upon the power of eminent
domain than does § 23.
This unfounded notion is a consequence
of the refusal to apply the interpretation of § 23 set forth
in Willis.
In other words, if Justice Murdock's view that
Willis does not apply is accepted and regulatory "takings" are
compensable under § 23 (a position that was rejected on
original submission by this Court), then § 23 would make
compensable regulatory "takings," whereas § 235 does not make
compensable regulatory "takings." Based on that unestablished
legal position, the argument then follows that the legislature
could not have intended to put less of a limitation upon the
power
of
eminent
domain
when
85
wielded
by
a
municipal
1110439, 1110507
corporation than when wielded by the State.
However, as
stated above, this argument is premised upon refusing to
accept the clear ruling in Willis, which a majority of this
Court recognized in Town of Gurley.
Therefore, giving Willis
its proper weight as binding precedent, the foundation of
Justice Murdock's dissent crumbles.
Moreover,
Justice
Murdock's
dissent
would
render
meaningless § 235; such an interpretation of our Constitution
is prohibited by our rules of constitutional interpretation.
As this Court noted in Town of Gurley:
"[T]his Court set forth the following concerning the
power of eminent domain and its limitations in Gober
v. Stubbs, 682 So. 2d 430, 433-34 (Ala. 1996):
"'The power of eminent domain does not
originate in Article I, § 23. Instead, it
is a power inherent in every sovereign
state. Section 23 merely places certain
limits on the exercise of the power of
eminent domain. This Court stated in Steele
v. County Commissioners, 83 Ala. 304, 305,
3 So. 761, 762 (1887):
"'"The
right
of
eminent
domain antedates constitutions,
and
is
an
incident
of
sovereignty, inherent in, and
belonging to every sovereign
State. The only qualification of
the [inherent] right is, that the
use for which private property
may be taken shall be public....
86
1110439, 1110507
The constitution [of our State]
did not assume to confer the
power of eminent domain, but,
recognizing
its
existence,
[further] limited its exercise by
requiring that just compensation
shall be made."
"'In order for an exercise of eminent
domain to be valid under § 23, two
requirements must be met. See Johnston v.
Alabama Public Service Commission, 287 Ala.
417, 419, 252 So. 2d 75, 76 (1971). First,
the property must be taken for a public use
and, with one exception inapplicable here,
it cannot be taken for the private use of
individuals or corporations. This first
restriction is no more than a restatement
of a requirement inherent in a sovereign's
very right to exercise eminent domain. See
Steele, 83 Ala. at 305, 3 So. at 762.
Second, "just compensation [must be paid]
for any private property taken." Johnston,
287 Ala. at 419, 252 So. 2d at 76.'
"(Footnotes omitted.)"
___ So. 3d at ___ (emphasis added).
As set forth in Town of
Gurley, quoting Gober v. Stubbs, 682 So. 2d 430, 433-34 (Ala.
1996), the power of eminent domain is an inherent power of the
State, and the Constitution limits the State's exercise of
that power.
The State may confer its inherent power of eminent domain
upon a municipal corporation.
In fact, in City of Birmingham
87
1110439, 1110507
v. Brown, 241 Ala. 203, 207, 2 So. 2d 305, 308 (1941), this
Court held:
"A municipal corporation has no inherent power
of eminent domain, and can exercise it only when
expressly authorized by the legislature, and
statutes conferring the right must be strictly
construed in favor of the landowner. New & Old
Decatur Belt, etc., R. R. Co. v. Karcher, 112 Ala.
676, 21 So. 825 [(1896)]; Sloss-Sheffield S. & I.
Co. v. O'Rear, 200 Ala. 291, 76 So. 57 [(1917)];
Denson v. Alabama P. I., [220 Ala. 433, 126 So. 133
(1930)]; 10 R.C.L. page 197."
Therefore, the only manner in which a municipal corporation
may exercise the power of eminent domain is if the State has
conferred upon it the power to do so.
The State has, under
numerous statutes, invested municipal corporations with the
privilege of taking property for public works; that privilege
is limited by § 235.
Justice Murdock's dissent concludes that because the
State conferred the power to zone upon the Town, M & N's
inverse-condemnation
action
for
"taking" may be brought under § 23.
the
alleged
regulatory
Justice Murdock does not
explain how granting a municipal corporation the power to zone
is the equivalent of conferring upon a municipal corporation
the power of eminent domain. A taking by the power of eminent
domain involves a change in ownership of the property taken,
88
1110439, 1110507
whereas there is no change in ownership when a property is
subject to a zoning ordinance.
Regardless, Justice Murdock's
dissent ignores the structure of the Alabama Constitution and
would render useless § 235.
In Hornsby v. Sessions, 703 So. 2d 932, 939 (Ala. 1997),
this Court held:
"'A constitutional provision, as far as possible,
should be construed as a whole and in the light of
[the] entire instrument and to harmonize with other
provisions, [so] that every expression in such a
solemn pronouncement of the people is given the
important meaning that was intended in such context
and such part thereof.' State Docks Commission v.
State ex rel. Cummings, 227 Ala. 414, 417, 150 So.
345, 346 (1933)."
Further, this Court has also held that "[e]ach section of the
Constitution must necessarily be considered in pari materia
with all other sections.
125 (Ala. 1976)."
Opinion of the Justices, 333 So. 2d
Jefferson Cnty. v. Braswell, 407 So. 2d
115, 119 (Ala. 1981); see also House v. Cullman Cnty., 593 So.
2d. 69, 72 (Ala. 1992) ("This rule applies with particular
force in the construction of provisions of the Constitution
....").
In order to ensure that we do not violate the above
principles,
we
must
consider
89
the
structure
of
the
1110439, 1110507
Constitution.
Section
23
falls
under
Article
I
of
the
Constitution, which is entitled "Declaration of Rights"; § 23
states:
"That the exercise of the right of eminent
domain shall never be abridged nor so construed as
to prevent the legislature from taking the property
and franchises of incorporated companies, and
subjecting them to public use in the same manner in
which the property and franchises of individuals are
taken and subjected; but private property shall not
be taken for, or applied to public use, unless just
compensation be first made therefor; nor shall
private property be taken for private use, or for
the use of corporations, other than municipal,
without the consent of the owner; provided, however,
the legislature may by law secure to persons or
corporations the right of way over the lands of
other persons or corporations, and by general laws
provide for and regulate the exercise by persons and
corporations of the rights herein reserved; but just
compensation shall, in all cases, be first made to
the owner; and, provided, that the right of eminent
domain shall not be so construed as to allow
taxation or forced subscription for the benefit of
railroads or any other kind of corporations, other
than municipal, or for the benefit of any individual
or association."
(Emphasis added.)
Section 36, Ala. Const. 1901, the last
section in Article I, states:
"That this enumeration of certain rights shall
not impair or deny others retained by the people;
and, to guard against any encroachments on the
rights herein retained, we declare that everything
in this Declaration of Rights is excepted out of the
general powers of government, and shall forever
remain inviolate."
90
1110439, 1110507
(Emphasis added.)
As made plain in the language of § 36, the
Declaration of Rights set forth in Article I, including the
limitations on the power of eminent domain in § 23, applies to
the State generally, not only to the legislature. Section 235
falls under Article XII, which is entitled "Corporations"; §
235 states:
"Municipal
and
other
corporations
and
individuals invested with the privilege of taking
property
for
public
use,
shall
make
just
compensation, to be ascertained as may be provided
by law, for the property taken, injured, or
destroyed by the construction or enlargement of its
works, highways, or improvements, which compensation
shall be paid before such taking, injury, or
destruction."
Section 235 is a further limitation upon the eminent-domain
power
specifically
applicable
to
corporations,
including
municipal corporations.
When the structure of the Constitution is considered and
all parts are read in harmony, § 235 clearly provides the
avenue
by
which
to
bring
an
inverse-condemnation
action
against a municipal corporation "invested with the privilege
of taking property for public use," such as the Town.
The
position that § 23 applies to the State and § 235 applies to
municipal corporations was stated in Duy v. Alabama Western
91
1110439, 1110507
R.R., 175 Ala. 162, 57 So. 724 (1911), in which this Court
held:
"As to the state itself, the sole restraint in
the particular now important is Const. § 23, wherein
it is provided that 'private property shall not be
taken for, or applied to, public use, unless just
compensation be first made therefor.' Section 235 is
addressed to the restraint of 'municipal and other
corporations and individuals invested with the
privilege of taking property for public use.' This
latter section does not apply to the state itself in
the exercise of its sovereign power in restraint of
which, in so far as we are now concerned, Const. §
23, alone operates. It was ruled in Jackson v.
Birmingham F. & M. Co., [154 Ala. 464, 45 So. 660
(1908)], that a property owner whose lot abutted on
a street had a special, private property right in
the street, which could not be taken, by a vacation
of the street, without compensation, if such
vacation, by the state, operated to deprive the
property of a reasonably convenient means of access
thereto. In the Jackson Appeal, as appears,
consideration was alone given the validity vel non
of the legislative act as affected by Const. 1875,
art. 1, § 24; Const. 1901, § 23. No account was or
could be taken of section 235, or of its predecessor
in the Constitution of 1875, for, as stated, that
section of the Constitution did not restrict the
state itself in the exercise of its power in the
premises."
175 Ala. at 173-75, 57 So. at 727-28.
See also Markstein v.
City of Birmingham, 286 Ala. 551, 554, 243 So. 2d 661, 662
(1971)("We note that section 235, which begins 'Municipal and
other corporations and individuals invested with the privilege
of taking property for public use, ...' does not apply to
92
1110439, 1110507
eminent domain proceedings initiated by the State. State v.
Barnhill, 280 Ala. 574, 196 So. 2d 691 [(1967)]; Finnell v.
Pitts, 222 Ala. 290, 132 So. 2 [(1930)].").
Justice Murdock's dissent violates the above principles
by rendering meaningless § 235.
Parties bringing an inverse-
condemnation action against a municipal corporation would be
free to disregard § 235 entirely in favor of § 23.
Sections
23 and 235 are not alternate avenues by which to receive just
compensation but must be read in harmony, and each must be
given effect.
Reading §§ 23 and 235 in pari materia, one must
conclude that any inverse-condemnation action against the
municipal corporation using its conferred power of eminent
domain must be brought pursuant to § 235, which does not make
compensable regulatory "takings."
I sympathize with the notion that our principles of
judicial restraint and strict constructionism have produced an
undesirable result in this case. However, we must not abandon
our principles to obtain a desired result in this one instant.
Let
us
heed
the
following
warning
set
forth
in
George
Washington's Farewell Address of 1796:
"If, in the opinion of the people, the distribution
or modification of the constitutional powers be in
93
1110439, 1110507
any particular wrong, let it be corrected by an
amendment in the way which the Constitution
designates. But let there be no change by
usurpation; for though this, in one instance, may be
the instrument of good, it is the customary weapon
by which free governments are destroyed. The
precedent must always greatly overbalance in
permanent evil any partial or transient benefit,
which the use can at any time yield."
94
1110439, 1110507
SHAW, Justice (concurring specially).
It is incorrect to say that M & N Materials, Inc. ("M &
N"),
cannot
receive
compensation
for
any
taking
of
its
property in this case: according to M & N, it can seek
compensation for a violation of its 5th and 14th Amendment
rights, and it could have sought to challenge the zoning
regulations in this case as arbitrary and capricious. See ___
So.
3d
at
___
(Moore,
C.J.,
concurring
specially).
Notwithstanding my personal opposition to the notion of an
uncompensated regulatory taking, I cannot change the Alabama
Constitution to provide a remedy that has not existed in 138
years.
Thus, I concur to overrule the applications for
rehearing, as they do not convince me that our original
opinion in this case "overlooked or misapprehended" the facts
or law.
As
Rule 40(b), Ala. R. App. P.
framed
purportedly
by
the
involves,
interpretation
of
two
arguments
among
on
other
appeal,
things,
"eminent-domain"
this
the
provisions
case
proper
of
our
Constitution of 1901: art. I, § 23, and art. XII, § 235.
These constitutional provisions require that governmental
95
1110439, 1110507
entities acting to "take" private property for public use
provide "just compensation" to the private-property owner.6
Section
235
governs
the
"taking"
of
property
by
municipalities and corporations that have been "invested with
th[is] privilege." As the numerous authorities in our opinion
on original submission note, § 235 does not make compensable
"regulatory
takings";
instead,
"the
taking,
injury,
or
destruction of property must be through a physical invasion or
disturbance
of
the
property
...
administrative or regulatory acts."
not
merely
through
Town of Gurley v. M & N
Materials, Inc., [Ms. 1110439, Dec. 21, 2012] ___ So. 3d ___,
(Ala. 2012).
6
When governmental entities wish to acquire property for
public use, they may pursue what is known as a "condemnation"
action.
See Ala. Code 1975, §§ 18-1A-20 through -32.
If
there is a "taking of private property for public use without
formal condemnation proceedings and without just compensation
being paid by a governmental agency or entity which has the
right or power of condemnation," then the property owner
brings what is known as an "inverse condemnation" action
seeking such compensation. McClendon v. City of Boaz, 395 So.
2d 21, 24 (Ala. 1981). The Town of Gurley did not institute
a condemnation action in this case; instead, M & N argues that
the result of the Town's zoning ordinance is that it has been
denied a property interest and is thus entitled to "just
compensation."
96
1110439, 1110507
Section 23 broadly references the exercise of the power
of eminent domain.
As noted in our opinion on original
submission in the instant case, Willis v. University of North
Alabama, 826 So. 2d 118 (Ala. 2002), indicates that § 23 also
applies
to
the
"physical"
"regulatory" taking.7
taking
of
property
and
not
a
Thus, § 23 and § 235 are in harmony:
they both require just compensation for a "physical" taking of
property.
The 5th and 14th Amendments to the Constitution of the
United States also address the exercise of eminent-domain
powers but have been interpreted differently than § 23 and §
235.
Specifically, the Supreme Court has held that the 5th
and 14th Amendments can require (in some cases) that just
compensation be paid for a "regulatory" taking of property.
7
We stated:
"Therefore, it is clear, under the plain
language of § 23 and under Willis, that the trial
court properly held that § 23 does not apply in this
case. It is undisputed that there was not an actual
taking in this case and that M & N has complained
only of administrative and/or regulatory actions
taken by the Town.
Willis makes clear that § 23
applies when a physical taking of the property in
question has occurred."
___ So. 3d at ___.
97
1110439, 1110507
See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S.
1003 (1992).
M & N acknowledges in its brief on rehearing
that a claim under federal law for a purported regulatory
taking by the Town of Gurley is available to it; however, M &
N has instead, among other things, elected to pursue an
inverse-condemnation action alleging that the Town of Gurley's
zoning ordinances amounted to a regulatory taking under § 23.
Specifically, M & N asks this Court to, for the first time in
nearly 138 years,8 interpret § 23 as embracing the federal
regulatory-taking principles, the very principles M & N has
not pursued.
To accomplish such an interpretation and apply it in this
case, this Court must distinguish Willis or overrule it (which
we have not been asked to do).
Then, the definition of a
"taking" in § 23 must be expanded to something less than an
actual physical taking.
This would create disharmony with §
235: both regulatory and physical takings would be covered by
§
23,
but
§
municipalities,
235,
which
would,
as
explicitly
our
8
covers
caselaw
takings
states,
by
require
Section 24 of the 1875 Alabama Constitution appears
essentially identical to § 23.
98
1110439, 1110507
compensation for only physical takings. Section 23 would
provide
a
greater
restriction
on
eminent
domain,
while
municipalities have a freer hand under the more limited
definition of a taking under § 235.
Recognizing the inequity this new definition would create
between § 23 and § 235, it is suggested that § 23 should be
interpreted as essentially trumping § 235 and also regulating
all municipal takings.
Such an interpretation essentially
renders § 235 meaningless: applying an expanded definition of
"taking" under § 23 to municipalities would mean that the
narrower definition under § 235 would no longer have any
practical field of application.
In other words, the more
expanded definition of a "taking" under § 23 would swallow the
limited
definition
notwithstanding
my
of
"taking"
opposition
under
to
the
§
235.
notion
Again,
of
an
uncompensated regulatory taking, to change the interpretation
of one section of the Alabama Constitution (§ 23) at the cost
of rendering another section (§ 235) irrelevant (all for the
purpose of extending a remedy that already exists under
federal law) seems to me unnecessary and contrary to my
understanding of the concept of judicial restraint.
Stuart, J., concurs.
99
1110439, 1110507
BOLIN, Justice (concurring in the result in case no. 1110439
and dissenting in case no. 1110507).
As a former probate judge, I presided over numerous
condemnation cases, both direct and inverse.
I readily admit
that I misapprehended the law with regard to Alabama's general
eminent-domain provision, § 23, Ala. Const. 1901, and the
state-law claim of M & N Materials, Inc., that the Town of
Gurley's actions amounted to a regulatory taking.9
I must
respectfully dissent from the denial of rehearing in case no.
1110507, because I would grant rehearing; I also join Justice
Bryan's special writing.
The factual scenario that led to the instant proceeding
has been well laid out in this Court's opinion on original
submission. It begins with and could be captioned by the
colloquial acronym "NIMBY," an abbreviation for "Not In My
Backyard,"
which
is
often
the
reaction
when
there
is
a
conflict between private-property rights and needs for public
9
This Court grants applications for rehearing in a narrow
range of cases. Rule 40(b), Ala. R. App. P., provides that
"[t]he application for rehearing must state with particularity
the points of law or the facts the applicant believes the
court overlooked or misapprehended." M & N Materials did so
in its application, and I believe it has demonstrated a
manifest error of law.
100
1110439, 1110507
use, as those needs are determined by governmental entities.
Here, the needs of the public were set and obtained by what
can only be explained as governmental arrogance, exhibited in
raw fashion by the municipality when it decided it did not
want a property owner outside its municipal boundaries to
operate a quarry. This governmental entity embarked on a road
to "lasso" the property in question into its corporate limits
through a legislative annexation, issued a moratorium on a
business license for the property owner, and finally enacted
a zoning ordinance to prohibit the operation of the proposed
quarry business -- without paying any compensation whatsoever
for so doing, much less just compensation.
Rare would be the person who would want a quarry built
and
operated
near
his
or
her
property
--
equally
rare,
however, would be a person who would not want roads and
highways constructed from minerals and rocks extracted from
the
earth
for
the
very
construction
of
such
roads
and
highways. I am now convinced that the Town had a lawful means
to
"take"
the
subsurface
rights
from
the
municipally
conscripted property owner through eminent domain, but chose
instead
a
course
that
allowed
101
it
to bypass
paying
just
1110439, 1110507
compensation therefor. Put another way, it chose to unlawfully
take for free by regulation what it chose not to take by
paying proper compensation through its conferred power of
condemnation.
The State of Alabama is imbued as a sovereign with the
right of eminent domain.
"[T]his Court set forth the following concerning the
power of eminent domain and its limitations in Gober
v. Stubbs, 682 So. 2d 430, 433-34 (Ala. 1996):
"'The power of eminent domain does not
originate in Article I, § 23. Instead, it
is a power inherent in every sovereign
state. Section 23 merely places certain
limits on the exercise of the power of
eminent domain. This Court stated in Steele
v. County Commissioners, 83 Ala. 304, 305,
3 So. 761, 762 (1887):
"'"The
right
of
eminent
domain antedates constitutions,
and
is
an
incident
of
sovereignty, inherent in, and
belonging to every sovereign
State. The only qualification of
the [inherent] right is, that the
use for which private property
may be taken shall be public....
The constitution [of our State]
did not assume to confer the
power of eminent domain, but,
recognizing
its
existence,
[further] limited its exercise by
requiring that just compensation
shall be made."
102
1110439, 1110507
"'In order for an exercise of eminent
domain to be valid under § 23, two
requirements must be met. See Johnston v.
Alabama Public Service Commission, 287 Ala.
417, 419, 252 So. 2d 75, 76 (1971). First,
the property must be taken for a public use
and, with one exception inapplicable here,
it cannot be taken for the private use of
individuals or corporations. This first
restriction is no more than a restatement
of a requirement inherent in a sovereign's
very right to exercise eminent domain. See
Steele, 83 Ala. at 305, 3 So. at 762.
Second, "just compensation [must be paid]
for any private property taken." Johnston,
287 Ala. at 419, 252 So. 2d at 76.'"
"(Footnotes omitted.)"
Town of Gurley v. M & N Materials, Inc., [Ms. 1110439,
December 21, 2012]
So. 3d
,
(Ala. 2012).
Article I of the Constitution of Alabama, the article
that defines and sets out our Declaration of Rights, provides
in § 23 that private property shall not be taken without just
compensation to the property owner first being provided.
Therefore, the State may condemn property for lawful purposes,
but must, as a limitation upon its inherent power, pay just
compensation to the property owner for doing so. The State is
further empowered to "confer" this right of a sovereign
regarding eminent domain upon a municipal corporation.
In
Sloss-Sheffield Steel & Iron Co. v. O'Rear, 200 Ala. 291, 292,
103
1110439, 1110507
76 So. 57, 58 (1917), this Court, quoting Lewis on Em. Dom.,
at § 374, stated:
"'Strictly speaking, the Legislature
cannot delegate the power of eminent
domain.
It
cannot
divest
itself
of
sovereign powers. But, in exercising the
power, it can select such agencies as it
pleases, and confer upon them the right to
take private property subject only to the
limitations contained in the Constitution.
Accordingly it has been held that the right
may be conferred upon corporations, public
or private, upon individuals, upon foreign
corporations, or a consolidated company
composed in part of a foreign corporation,
and upon the federal government. Such has
been
the
common
practice
since
the
Revolution, and the right to do so has
never been a matter of serious question;
and it may be regarded as settled law that,
in the absence of special constitutional
restriction,
it
is
solely
for
the
Legislature
to
judge
what
persons,
corporations or other agencies may properly
be clothed with this power.'"
(Emphasis added.)
The State therefore has the power to lawfully "confer"
the power of eminent domain upon municipalities, which it has
done
in
statutes
such
as
§
11-47-170,
Ala.
Code
1975,
applicable to municipal corporations only, and § 11-80-1(a),
Ala. Code 1975, applicable to both counties and municipal
corporations.
Section 11-47-170 reads, in pertinent part:
104
1110439, 1110507
"(a) Except as otherwise provided in subsection
(b), whenever in the judgment of the council,
commission, or other governing body of a city or
town it may be necessary or expedient for the
carrying out and full exercise of any power granted
by the applicable provisions of this title or any
other applicable provision of law, the town or city
shall have full power and authority to acquire by
purchase the necessary lands or rights, easements,
or interests therein, thereunder, or thereover or,
for the purposes for which private property may be
acquired by condemnation, may proceed to condemn the
same in the manner provided by this article, or by
the general laws of this state governing the taking
of lands or the acquiring of interests therein for
the uses for which private property may be taken,
and such proceedings shall be governed in every
respect by the general laws of this state pertaining
thereto or by the provisions on the subject
contained in this article when the same are
followed."
(Emphasis added.)
Further, § 11-80-1 states, in pertinent part:
"(a) Counties and municipal corporations may
condemn lands for public building sites or additions
thereto, or for enlargements of sites already owned,
or for public roads or streets or alleys, or for
material for the construction of public roads or
streets or for any other public use."
Therein lies the irony of not declaring this case to be
what it really is -- a hardball regulatory "taking" (by
annexation and zoning ordinance) by government of a privateproperty interest. This allows what has been determined to be
for the "public use" and public good to be accomplished by a
105
1110439, 1110507
municipality upon the unrecompensed shoulders of the property
owner. The ultimate irony of it all is this: the State has
given to or "conferred" on the Town of Gurley the lawful right
to have condemned this property, if it had so needed, "for
material for the construction of public roads or streets or
for any other public use," including "the necessary lands or
rights, easements or interests... thereunder," and the Town
can still do so in the future. However, the property owner is
now prevented and precluded, without any state-law remedy,
from ever extracting the same material from its own property
to mine and sell for use in the construction of public roads
or streets by the heavy-handed power of government.
Inverse condemnation is the taking of private property
for public use without formal condemnation proceedings and
without just compensation being paid by the governmental
agency or entity that has the power of condemnation. Foreman
v. State, 676 So. 2d 303, 305 (Ala. 1995), overruled on the
ground that § 23 requires a physical taking of property,
Willis v. University of North Alabama, 826 So. 2d 118 (Ala.
2002); for the reasons set out in Justice Bryan's special
writing, I agree that Willis was wrongly decided and should be
106
1110439, 1110507
overruled. As such, it is in the nature of a derivative action
available to a property owner when a condemnor defaults on its
obligation to commence a condemnation proceeding. Section 181A-32, Ala. Code 1975, wisely provides a property owner with
a remedy when such abuses occur:
"(a) If property is to be acquired through the
exercise of its power of eminent domain, the
condemnor shall commence a condemnation action for
that purpose. A condemnor shall not intentionally
make it necessary for an owner of property to
commence an action in inverse condemnation, to prove
the fact of the taking of his property.
"(b) The judgment and any settlement in an
inverse condemnation action awarding or allowing
compensation to the plaintiff for the taking or
damaging of property by a condemnor shall include
the plaintiff's litigation expenses."
(Emphasis added.)
The property owner, M & N Materials, had its property
involuntarily annexed into the Town of Gurley, was delayed and
its property subsequently rezoned into a classification that
did not allow for the mining of its subsurface mineral rights,
and hence was a classic victim of a regulatory "taking" or
"damaging." From the beginning it would have been difficult to
argue that the opinion on original submission was an unjust
result
based
on
the
facts.
The
107
office
of
a
rehearing
1110439, 1110507
application is to allow for a review and recalculation of the
law involved. Now, based upon a review of,
and a second look
at, the law involved, it is my judgment that M & N properly
availed itself of the state-law remedy provided by § 18-1A-32
in its complaint, and it is my considered opinion that the
application for rehearing should have been granted in case no.
1110507.
One of the premier Alabama lawyers who ever practiced
eminent-domain law was Maurice F. Bishop. He was well over 50
years ahead of his time when wrote the following:
"There is no phase of the law that has seen a
wider expansion during the last few years than the
law of eminent domain, and with the [then] new,
tremendous interstate highway and local urban
redevelopment programs now in full swing throughout
Alabama, I feel that we can confidently predict that
this phase of the law will become one of the most
important and remunerative parts of our work. It
will continue to increase in magnitude as the
programs of the state, federal and local governments
make mandatory the condemnation of lands for public
purposes. Therefore, continuing legal education in
this field is of increasing importance."
The Alabama Lawyer, Vol. 22, No. 4 (October 1961).
Little
did
Bishop
realize
how
prescient
he
was,
especially given the present-day and future litigation that
will inevitably develop from the battle between the rights of
108
1110439, 1110507
private-property owners against public takings by governmental
regulatory action.
Wise, J., concurs.
109
1110439, 1110507
BRYAN, Justice (concurring in the result in case no. 1110439
and dissenting in case no. 1110507).
The Takings Clause of the Fifth Amendment to the United
States
Constitution,
which
applies
to
both
the
federal
government and the states, see Chicago, B. & Q. R.R. v. City
of
Chicago,
166
U.S.
226
(1897),
provides
that
private
property shall not "be taken for public use, without just
compensation."
Alabama's general eminent-domain provision, §
23, Ala. Const. 1901, mirrors the Takings Clause.
Section 23
provides, in part: "[P]rivate property shall not be taken for,
or applied to public use, unless just compensation be first
made therefor ...."
The Takings Clause, as well as our § 23,
"does not prohibit the taking of private property, but instead
places a condition on the exercise of that power." First
English Evangelical Lutheran Church of Glendale v. County of
Los Angeles, 482 U.S. 304, 314 (1987).
That is, it "is
designed not to limit the governmental interference with
property rights per se, but rather to secure compensation in
the event of otherwise proper interference amounting to a
taking."
First English, 482 U.S. at 315 (emphasis omitted).
"One of the principal purposes of the Takings Clause is 'to
bar Government from forcing some people alone to bear public
110
1110439, 1110507
burdens which, in all fairness and justice, should be borne by
the public as a whole.'"
Dolan v. City of Tigard, 512 U.S.
374, 384 (1994) (quoting Armstrong v. United States, 364 U.S.
40, 49 (1960)).
The
classic
example
of
a
taking
involves
a
direct
appropriation of property or physical intrusion onto property.
Before 1922, "it was generally thought that the Takings Clause
reached only a 'direct appropriation' of property, or the
functional equivalent of a 'practical ouster of [the owner's]
possession.'"
Lucas v. South Carolina Coastal Council, 505
U.S. 1003, 1014 (1992) (citations omitted).
year
the
United
States
Supreme
Court
However, in that
stated
that
"if
regulation goes too far it will be recognized as a taking"
under the Takings Clause. Pennsylvania Coal Co. v. Mahon, 260
U.S.
393,
[Supreme]
415
Court
(1922).
"Beginning
recognized
that
with
Mahon,
government
...
regulation
the
of
private property may, in some instances, be so onerous that
its effect is tantamount to a direct appropriation or ouster
–– and that such 'regulatory takings' may be compensable under
the Fifth Amendment."
Lingle v. Chevron U.S.A., Inc., 544
U.S. 528, 537 (2005).
111
1110439, 1110507
The main opinion on original submission concludes that a
government's regulatory conduct cannot effect a taking under
§ 23, which is our State's parallel provision to the Takings
Clause.
That view places Alabama landowners, like M & N
Materials, Inc., the plaintiff in this case, in the position
of potentially having to "'bear public burdens which, in all
fairness and justice, should be borne by the public as a
whole.'"
Dolan, 512 U.S. at 384 (quoting Armstrong, 364 U.S.
at 49).
Thus, I must respectfully dissent in case no.
1110507.
First, I note that I agree with much of Justice Murdock's
substituted special writing.
Justice Murdock aptly explains
why § 23 applies to the Town of Gurley's regulatory conduct in
this case.
However, whereas Justice Murdock distinguishes
this case from Willis v. University of North Alabama, 826 So.
2d 118 (Ala. 2002), a case relied on by the main opinion, I
would simply overrule Willis.
In my opinion, Willis requires that there be a physical
intrusion
onto
property
property under § 23. In
for
there
to
be
taking
of
that
Willis, this Court stated, in a
straightforward manner:
112
1110439, 1110507
"UNA [University of North Alabama] argues that § 23
does not apply to this case because UNA did not
physically take Willis's property or apply Willis's
property to public use during the construction of
the parking deck. We agree."
826 So. 2d at 121 (emphasis added).
Thus, Willis precludes
a "regulatory taking" –– the type of taking allowed under the
Takings Clause after Mahon –– under § 23.
Although the term
"regulatory taking" may be given different meanings, see,
e.g., John Martinez, Government Takings §§ 2:9-20 (2007), in
the context of the present case the term describes a taking in
which the government does not physically invade or disturb the
property.
For the following reasons, I believe we should
overrule Willis.
Initially, I recognize that we have not been asked to
overrule Willis and that "[s]tare decisis commands, at a
minimum, a degree of respect from this Court that makes it
disinclined to overrule controlling precedent when it is not
invited to do so."
Moore v. Prudential Residential Servs.
Ltd. P'ship, 849 So. 2d 914, 926 (Ala. 2002).
However, this
is that rare case in which we should overrule precedent on our
motion.
113
1110439, 1110507
As noted, more than 90 years ago, in 1922, the United
States Supreme Court stated that "if regulation goes too far
it will be recognized as a taking" under the Takings Clause of
the Fifth Amendment.
Mahon, 260 U.S. at 415.
Since Mahon,
the Supreme Court has developed extensive caselaw regarding
regulatory takings under the Takings Clause; the concept of a
regulatory taking under that provision is well established.
See Martinez, supra, §§ 2:9-20. As noted, the applicable part
of Alabama's general eminent-domain provision, § 23, mirrors
the
Takings
construction
Clause.
of
The
federal
United
States
constitutional
Supreme
Court's
provisions
is
persuasive when we construe similar provisions of the Alabama
Constitution.
Pickett v. Matthews, 238 Ala. 542, 547, 192
So. 261, 265-66 (1939).
To conclude otherwise would "produce
much confusion and instability in legislative effectiveness."
Id.
By interpreting § 23 to preclude a regulatory taking,
Willis is out of line with well established Supreme Court
precedent construing a provision materially the same as our
provision in § 23.
Moreover, Willis is out of line with the vast majority of
states, which recognize the concept of a regulatory taking
114
1110439, 1110507
under
state
constitutions
federal law on that subject.
and
often
borrow
heavily
from
See Cannone v. Noey, 867 P. 2d
797 (Alaska 1994); Mutschler v. City of Phoenix, 212 Ariz.
160, 129 P.3d 71 (Ariz. Ct. App. 2006); Forest Glade Mgmt.,
LLC v. City of Hot Springs, (No. CA 08-200, November 12, 2008)
(Ark. Ct. App. 2008) (not reported in S.W.3d); Twain Harte
Assocs., Ltd. v. County of Tuolumne, 217 Cal. App. 3d 71, 265
Cal. Rptr. 737 (1990); G & A Land, LLC v. City of Brighton,
233 P.3d 701 (Colo. Ct. App. 2010); Cumberland Farms, Inc. v.
Town of Groton, 262 Conn. 45, 808 A.2d 1107 (2002); Gradous v.
Board of Comm'rs of Richmond Cnty., 256 Ga. 469, 349 S.E.2d
707 (1986); Covington v. Jefferson Cnty., 137 Idaho 777, 53
P.3d 828 (2002); State v. Kimco of Evansville, Inc., 902
N.E.2d 206 (Ind. 2009); Molo Oil Co. v. City of Dubuque, 692
N.W.2d 686 (Iowa 2005); Lone Star Indus., Inc. v. Secretary of
Kansas Dep't of Transp., 234 Kan. 121, 671 P.2d 511 (1983),
superseded by statute as recognized in Estate of Kirkpatrick
v. City of Olathe, 289 Kan. 554, 215 P.3d 561 (2009); Annison
v. Hoover, 517 So. 2d 420 (La. Ct. App. 1987); Seven Islands
Land Co. v. Maine Land Use Regulation Comm'n, 450 A.2d 475
(Me. 1982); Maryland-National Capital Park & Planning Comm'n
115
1110439, 1110507
v.
Chadwick,
286
Md.
1,
405
A.2d
241
(1979);
Blair
v.
Department of Conservation & Recreation, 457 Mass. 634, 932
N.E.2d 267 (2010); Poirier v. Grand Blanc Twp., 167 Mich App.
770, 423 N.W.2d 351 (1988); DeCook v. Rochester Int'l Airport
Joint Zoning Bd., 796 N.W.2d 299 (Minn. 2011); Jackson Mun.
Airport Auth. v. Evans, 191 So. 2d 126 (Miss. 1966); Clay
Cnty. ex rel. Cnty. Comm'n of Clay Cnty. v. Harley and Susie
Bogue, Inc., 988 S.W.2d 102 (Mo. Ct. App. 1999); Buhmann v.
State, 348 Mont. 205, 201 P.3d 70 (2008); Scofield v. Nebraska
Dep't of Natural Res., 276 Neb. 215, 753 N.W.2d 345 (2008);
McCarran Int'l Airport v. Sisolak, 122 Nev. 645, 137 P.3d 1110
(2006); Burrows v. City of Keene, 121 N.H. 590, 432 A.2d 15
(1981);
Mansoldo v. State of New Jersey, 187 N.J. 50, 898
A.2d 1018 (2006); Estate & Heirs of Sanchez v. County
of
Bernalillo, 120 N.M. 395, 902 P.2d 550 (1995); Fred F. French
Inv. Co. v. City of New York, 39 N.Y.2d 587, 350 N.E.2d 381
(1976); Beroth Oil Co. v. North Carolina Dep't of Transp., 725
S.E.2d 651 (N.C. Ct. App. 2012); Rippley v. City of Lincoln,
330 N.W.2d 505 (N.D. 1983); State ex rel. Shemo v. City of
Mayfield Heights, 95 Ohio St. 3d 59, 765 N.E.2d 345 (2002);
Calhoun v. City of Durant, 970 P.2d 608 (Okla. Civ. App.
116
1110439, 1110507
1997); Hall v. State ex rel. Oregon Dep't of Transp., 252 Or.
App. 649, 288 P.3d 574 (2012); Cleaver v. Board of Adjustment,
414 Pa. 367, 200 A.2d 408 (1964); Annicelli v. Town of S.
Kingstown,
463
A.2d
133
(R.I.
1983);
Byrd
v.
City
of
Hartsville, 365 S.C. 650, 620 S.E.2d 76 (2005); US West
Commc'ns, Inc. v. Public Util. Comm'n of South Dakota, 505
N.W.2d 115 (S.D. 1993); Mayhew v. Town of Sunnyvale, 964
S.W.2d 922 (Tex. 1998); Diamond B-Y Ranches v. Tooele Cnty.,
91 P.3d 841 (2004); Killington, Ltd. v. State, 164 Vt. 253,
668 A.2d 1278 (1995); City of Virginia Beach v. Bell, 255 Va.
395, 498 S.E.2d 414 (1998); Presbytery of Seattle v. King
Cnty., 114 Wash. 2d 320, 787 P.2d 907 (1990); McFillan v.
Berkeley Cnty. Planning Comm'n, 190 W. Va. 458, 438 S.E.2d 801
(1993); Eberle v. Dane Cnty. Bd. of Adjustment, 227 Wis. 2d
609, 595 N.W.2d 730 (1999); and Cheyenne Airport Bd. v.
Rogers, 707 P.2d 717 (Wyo. 1985).
"[T]he right of acquiring and possessing property, and
having it protected, is one of the natural, inherent, and
unalienable rights of man."
Vanhorne's Lessee v. Dorrance, 2
U.S. (2 Dal.) 304, 310 (Cir. Ct. Pa. 1795). Our nation's
founders sought to protect the fundamental right of private
117
1110439, 1110507
property; unfortunately, Willis erodes that right.
James
Madison stated: "'Government is instituted to protect property
of every sort; as well as that which lies in the various
rights of individuals, as that which the term particularly
expresses.
This being the end of government, that alone is a
just government, which impartially secures to every man,
whatever is his own.'"
In re Certified Question from U.S.
Bankruptcy Court for the E. Dist. of Mich., 477 Mich. 1210,
1212-13, 722 N.W. 2d 423, 425 (2006) (Young, J., concurring)
(emphasis omitted) (quoting "Property," National Gazette,
March 29, 1792, Writings of James Madison (New York, Putnam,
Hunt ed. 1906), vol VI, p. 102).
Madison also stated that
"'[i]f the United States mean to obtain or deserve the full
praise due to wise and just governments, they will equally
respect the rights of property, and the property in rights
....'"
Taylor v. Armco Steel Corp., 373 F. Supp. 885, 887
(S.D. Tex. 1973) (quoting National Gazette, March 29, 1792).
Alexander Hamilton wrote that one of the benefits of the
proposed Constitution was "[t]he additional security which its
adoption will afford to the preservation of [republican]
government, to liberty, and to property."
118
Federalist No. 1
1110439, 1110507
(Alexander Hamilton) (George W. Carey & James McLellan eds.
2001).
Hamilton also wrote that state government, "in the
administration
of
immediate
visible
and
criminal
and
guardian
civil
of
justice,"
life
and
is
"the
property."
Federalist No. 17 (Alexander Hamilton) (George W. Carey &
James McLellan eds. 2001).
Arthur Lee, a delegate to the
Continental Congress, opined that "'the right of property is
the guardian of every other right, and to deprive a people of
this, is in fact to deprive them of their liberty.'" Resource
Inv., Inc. v. United States, 85 Fed. Cl. 447, 470 n.31 (2009)
(quoting James W. Ely, Jr., The Guardian of Every Other Right:
A Constitutional History of Property Rights 26 (2d ed. 1998)).
William
Blackstone,
who
held
great
influence
among
the
Founders, wrote: "'So great moreover is the regard of the law
for private property, that it will not authorize the least
violation of it; no, not even for the general good of the
whole community.'"
510
(2005)
Kelo v. City of New London, 545 U.S. 469,
(Thomas,
J.,
dissenting)
(quoting
1
William
Blackstone, Commentaries on the Laws of England *135).
By
failing to recognize the concept of a regulatory taking under
119
1110439, 1110507
§ 23, Willis falls short of national precedent and, in my
opinion, undermines our fundamental right to private property.
Furthermore, I note that Willis itself overruled Foreman
v. State, 676 So. 2d 303 (Ala. 1995), and Barber v. State, 703
So. 2d 314 (Ala. 1997), which relied on Foreman.
A review of
the briefs submitted in Willis indicates that no party or
amicus curiae in that case asked this Court to overrule those
cases.10
In that case, the University of North Alabama and
amici curiae did argue, on application for rehearing only, and
in the alternative, that Foreman and Barber were "flawed" and
that they "misapplied" the law, but they did not ask this
Court to overrule those cases.
On original submission in
Willis, no party or amici argued that those cases were wrongly
decided.
In short, Foreman and Barber, the cases Willis overruled,
allowed for the possibility of compensation under § 23 for
injuries to property that were not physical injuries, but
Willis precluded that possibility.
In my view, by overruling
Willis, we would simply be returning the law to a position
10
Because there was no oral argument in Willis, the only
arguments before this Court were those submitted in briefs.
120
1110439, 1110507
similar to the position in which it was before this Court
changed the law on its own motion.
align
our
State
with
the
In doing so, we would
overwhelming
majority
of
jurisdictions. The landowners of this State deserve the same
basic
protections
under
well
afforded by other jurisdictions.
settled
eminent-domain
law
For us to accomplish this,
we must overrule Willis's physical-intrusion rule and thereby
allow for regulatory takings under § 23.
Having overruled Willis, I would then remand this case
for the trial court to consider whether a regulatory taking
under § 23 actually occurred, given the facts here.
This
raises the question of which standard or standards would be
applied to determine whether a regulatory taking occurred.
Considering the plethora of cases that have applied the well
established regulatory-taking standards adopted by the Supreme
Court, I would apply those standards to cases involving
alleged regulatory takings under § 23.
As noted, although the term "regulatory taking" may be
given different meanings, see, e.g., Martinez, supra, §§ 2:920, in the present case the term merely describes a taking in
which the government does not physically invade or disturb the
121
1110439, 1110507
property.
Therefore,
it
would
appear
that
one
of
two
standards could be used to determine whether there was in fact
a regulatory taking in this case.
Id.
Applying the standard
established in Lucas v. South Carolina Coastal Council, 505
U.S. 1003, 1015 (1992), a government regulation goes "too far"
if it "denies all economically beneficial or productive use of
[the] land."
In that situation, a compensable taking occurs
unless "background principles of the State's law of property
and nuisance" would restrict the owner's intended use of the
property.
505 U.S. at 1029.
A Lucas taking is sometimes
referred to as a "total regulatory taking," 505 U.S. at 1026,
or a "categorical regulatory taking,"
Bair v. United States,
515 F.3d 1323, 1326 (Fed. Cir. 2008).
Any regulatory action causing less than the denial of all
economically beneficial or productive use of the property
would require an analysis under Penn Central Transportation
Co. v. New York City, 438 U.S. 104 (1978). Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302
(2002).
In Penn Central, the Supreme Court identified these
factors
for
determining
whether
a
regulatory
taking
has
occurred: (1) "the character of the governmental action"; (2)
122
1110439, 1110507
"[t]he economic impact of the [action] on the claimant"; and
(3) "the extent to which the [action] has interfered with
distinct investment-backed expectations."
Id. at 124.
The
Penn Central standard involves "essentially ad hoc, factual
inquiries."
Id.
A Penn Central taking is sometimes referred
to as a "partial regulatory taking."
See Palazzolo v. Rhode
Island, 533 U.S. 606, 633 (2001) (O'Connor, J., concurring);
and Bair, 515 F.3d at 1326.
In
conclusion,
I
concur
in
the
result
in
case
no.
1110439, but I must respectfully dissent in case no. 1110507.
Regarding the latter case, I would grant rehearing, overrule
Willis, look to federal caselaw regarding regulatory takings
under § 23, and remand the case for the trial court to
consider whether a regulatory taking occurred under either
Lucas or Penn Central.
Bolin and Wise, JJ., concur.
123
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